Justice and Security Bill [Lords]

Public Bill Committee, 5 February 2013.

Clause 6 - Proceedings in which court permits closed material applications

James Gray (Conservative, North Wiltshire)

I remind the Committee that with this we are discussing the following:

Amendment (a) to Government amendment 55, leave out ‘(6)’ and insert ‘(4)’.

Amendment (d) to Government amendment 55, in new subsection (1B), leave out ‘two conditions are’ and insert ‘condition is’.

Amendment (e) to Government amendment 55, in new subsection (1C), leave out ‘first’.

Amendment (b) to Government amendment 55, leave out from ‘condition’ to ‘is’ in new subsection (1C).

Amendment (f) to Government amendment 55, after ‘State’ in new subsection (1C), insert ‘or a party’.

Amendment (g) to Government amendment 55, in new subsection (1C), leave out from ‘proceedings),’ to end of new subsection (1F) and insert—

‘(b) such a disclosure would be damaging to the interests of national security,

(c) the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice, and

(d) a fair determination of the proceedings is not possible by any other means.

‘(1C) In deciding whether a party to the proceedings would be required to disclose material, the court must ignore—

(a) section 17(1) of the Regulation of Investigatory Powers Act 2000 (exclusion for intercept material), and

(b) any other enactment that would prevent the applicant from disclosing the material but would not do so if the proceedings were proceedings in relation to which there was a declaration under this section.

(1D) Before making an application under subsection (1), the Secretary of State must consider whether to make, or advise another person to make, a claim for public interest immunity in relation to the material on which the application would be based.

(1E) Before making a declaration under subsection (1), the court must consider whether a claim for public interest immunity could have been made in relation to the material.’.

Amendment (c) to Government amendment 55, leave out new subsection (1D).

Amendment 52, in clause 6, page 5, line 3, leave out ‘subsection (2)’ and insert ‘this section’.

Amendment 68, in clause 6, page 5, line 3, leave out from ‘must’ to end of line 5 and insert—

‘(a) ensure that the material is disclosed to a special advocate,

(b) determine whether a claim for public interest immunity could have been made in relation to any part of the material, and

(c) order disclosure of any part of the material to which public interest immunity would not apply.

‘(6A) In making a determination pursuant to subsection 2(d), the court—

(a) must not make such a determination solely by reason of the fact that such material would be excluded by the operation of the doctrine of public interest immunity; and

(b) must only make such a determination if otherwise the proceedings would be struck out pursuant to any rule of law; and

(c) must only make such a determination if the court is satisfied that the unfairness to the relevant person or the Secretary of State by not making a declaration under this section would be substantially greater than the unfairness to the other parties by making such a declaration.’.

Government amendments 64, 66 and 67.

Government new clause 5—Review and revocation of declaration under section 6.

James Gray (Conservative, North Wiltshire)

At the conclusion of the Committee’s business on Thursday, Mr Slaughter was on his feet. I think it only reasonable, if the Committee is agreeable, that he should complete what he was saying.

Andrew Slaughter (Labour, Hammersmith)

I am most grateful, Mr Gray, and I welcome you back to the Chair. You missed an interesting debate on Thursday afternoon. I will be as brief as I can in concluding my comments, but I need to make two or three important points.

I have pointed out the problems with the new approach that the Government are taking with clause 6, and thereby with the proposed role for the closed material procedure in civil proceedings. Government amendment 55 is a wholesale rejection of the approach that the courts, the House of Lords, Committees of both Houses, the official Opposition, special advocates and leading non-governmental organisations have taken to CMPs. The amendment deletes safeguards proposed by the other place, or distorts them so that they do not have the professed effect. There is no equality of arms, no requirement to consider public interest immunity before entering into a CMP, and no restriction of the CMP to an option of last resort.

The amendment introduces alien and untried concepts: the fair and effective administration of justice in the proceedings test; the idea that any material that would be required to be disclosed is sufficient to invoke a CMP, which looks like a revival of the proposals in the Bill when it entered the other place; and a new definition of “sensitive material”, which would engage CMPs whenever material that could, rather than would, damage national security was said to be relevant to the proceedings.

The overall intent of the amendment is to make CMPs not the last resort but the almost inevitable recourse of the court, where they are put in issue. The cumulative impact of the amendment—what it deletes and what it adds—makes the Government’s one concession to the other place almost worthless. It moves the “may” in subsection 6(2) as close as possible to a “must” as interpretation will permit.

I will make just three further short points about the group of amendments. My first point is that, having reflected since the Committee adjourned, we feel that the sensitive material provision appears to be aimed, in part at least, at preventing the use of confidentiality rings and using a CMP instead, even if there is no risk to national security in using such a ring.

The Bill prevents a court from imposing a CMP in a case where a confidentiality ring could securely be used. That is because a CMP could be used only in relation to material the disclosure of which would be damaging to national security. If, therefore, a court ordered disclosure in confidence to, for example, a security-cleared lawyer, such a disclosure could not damage national security and there would be no power to order a CMP. Under the Government amendment, a CMP can be ordered in circumstances in which national-security-sensitive material would be disclosed to anyone, even a totally discreet security-cleared lawyer.

The courts have recently ruled that confidentiality rings can be used in national security cases. That follows decades of practice in the chancery and commercial courts where their use is common in relation to trade secrets or sensitive pricing. In such cases, the information is disclosed to the party’s lawyers and/or experts only on their undertaking not to disclose it to their clients.

The secret information is communicated through the judge, in private hearings, so that both sides’ lawyers are able fully to argue the case. Such a procedure is fair and does no violence to our traditional fair trial principles. A typical use of confidentiality rings is in cases where the evidence in question lies outside the knowledge of the lay client, and where he would have little or no comment to make on the evidence, even if he knew what it was.

Secondly, I intervened on the Minister to ask what in the court’s inherent jurisdiction would prevent it from carrying out the process envisaged in new clause 5. The Minister’s response was that the new clause identified the point in proceedings post-disclosure. I do not find that particularly persuasive. The court could take that step in such a process, and it might be logical to do so, but we fear that the new test—the new buzz phrase of

“the fair and effective administration of justice in the proceedings”—

is being used as a catch-all, which we do not consider acceptable for reasons I have already given.

We are actually discussing a stalking horse for the Government’s likely opposition to our amendment 71 to clause 7, which looks at the Wiley balance in the proceedings. To be absolutely clear, new clause 5 simply allows something that is available to the court in any event, a complete review of the CMP at some point, but it is not in any way a review of evidence within the CMP process and goes nowhere near to conducting that balancing test in the public interest. For that reason, whether new clause 5 is a sop or a way of heading off future debate, we can see that it does little.

The briefing by Liberty in response to amendment 55 included a memorable phrase about the Government’s proposals in amendment 55 and new clause 5, describing them as a “judicial fig leaf” attempting to add a veneer of procedural fairness to something fundamentally procedurally unfair. I fear that is what the Government are doing with new clause 5.

Our amendment 68, which we will probably not have the opportunity to vote on because it comes some way down the line, was intended to be probing. It is important, however, because it shows our approach to CMP and how it differs from the Government’s. Far from wanting to jettison the provisions put in by the House of Lords, we think that their lordships were right to give clear guidance to the court.

If anything, such guidance could be clearer. The provisions proposed in amendment 68, therefore, maintain the pre-eminence of public interest immunity but also suggest to the judge that the special advocate should be engaged throughout; that open material should always be disclosed; that the fairness test, in the course of argument, should go beyond what is simply contained within PII; that the option of strike-out should be a real possibility, as per the Carnduff example, although it is rare; and, of course, that CMP should not be engaged simply because the PII process is thought to be inappropriate.

That list is not exhaustive, but it shows what a good judge would do in any event in weighing up whether to enter a CMP. To have such measures in the Bill could do no harm, so we are suggesting a sensible course for the Government to go down. Having seen what they have done with amendment 55, I think it unlikely that they will do so.

My final remarks on the politics involved, which underlie the reasons for the Government’s otherwise rather curious drafting strategy, may be an interesting precursor to the hon. Member for Cambridge, if he is to follow me and speak to his amendment. Why are the Government going to elaborate lengths to repeal the House of Lords safeguards, which is effectively what they are doing, while pretending not to do so? The response, published last week, to the second report of the Joint Committee on Human Rights, had an introduction, only four or five paragraphs long, by the Minister without Portfolio. It would be possible to spend a day textually analysing it; it could probably stand more than the first chapter of Genesis, so complicated an analysis is it of what should be a relatively simple matter. However, I shall refrain.

I limit myself to considering the last but one sentence of the introduction, which includes the statement that

“there is nothing between the Committee and the Government on the major principles at issue”.

Well, there is. The Minister without Portfolio says in the response that the Government accept equality of arms, but after my detailed analysis on Thursday I think that they do not, and I believe that the amendment tabled by the hon. Member for Cambridge shows that he accepts that point. The report says that the Government accept the general judicial discretion; but my answer is that they do not. The Minister without Portfolio says, in terms, that he rejects the last resort approach and the use of PII first.

Quite why the right hon. and learned Gentleman wants to pretend to associate himself with the views of the Joint Committee I do not know. That has certainly confused the media. On Monday last week, The Daily Telegraph gave some welcome publicity to the booklet by the hon. Member for Chichester (Mr Tyrie), under the headline, “Secret court hearings ‘will do more harm than good’, Tory MP says”.

However, by the early hours of Tuesday morning, the Daily Mail, which has been a severe critic of the Government until now, was writing about “A welcome U-turn over secret courts”. By lunch time the same day, The Guardian was referring to a

“highly complex list of amendments”.

I think that that meant that the media were thinking about what was happening. By Wednesday morning at 7 o’clock, The Daily Telegraph headline was about the claim: “Climbdown on secret courts not as it seems”.

It took the astute gentlemen and ladies of the press less than 48 hours to work out what was going on. It is a pattern that has bedevilled the Bill process since the Green Paper was published in October 2011. The overwhelming horror—I do not think that that is too strong a word—of the reaction to that, along with the excellent job done on the first report of the Joint Committee on Human Rights, published in April 2012, and the evidence taken for it, made the Government think again.

Another good example of that effect came when the Bill was published in the House of Lords in May 2012, a month after the Joint Committee reported. Again, the Minister without Portfolio said, “Yes, you have caught me out; I was trying something on that I should not have—but everything will be fine now.” There were three concessions, which are now seen as rather inadequate: national security only; inquests excluded; and the opportunity of judicial review. I notice with interest that, at the time, those changes, which are not so far proving to be really satisfactory to anyone but the Government, satisfied the hon. Member for Cambridge. He said he welcomed the victory for open justice, and of course claimed credit for the Liberal Democrats.

The Minister without Portfolio apologised again to the Daily Mail, said that he would get things right this time, and pressed on with the Bill as amended. Then, in November, the second report of the Joint Committee was published. The Constitution Committee of the House of Lords reported, and there were debates, particularly on Report and Third Reading, in the House of Lords, that made it clear that it simply would not do. Then further concessions were made on Second Reading in this House, on 18 December, when much was made of equality of arms—something that, as we have seen, has now been reneged on. Yet the Government still purport to accept some of those amendments.

I am not going to labour the point, but I wonder why the Government need to go through this process. I suspect that, unusually, it has something to do with what happened in September last year at the Liberal Democrat conference—not a body that anyone normally takes notice of, not even the Liberal Democrat leadership. A strong motion rejecting the whole of part 2, “Disclosure of sensitive material”, was passed. Instructions were given to Front-Bench spokesmen not to support it, and with the failure of the Front-Bench spokesmen not to go down that route—

Dr Julian Huppert (Cambridge) (LD) indicated dissent.

Mike Crockart (Edinburgh West) (LD) indicated dissent.

Andrew Slaughter (Labour, Hammersmith)

The hon. Gentlemen are shaking their heads. I will read a couple of paragraphs of what was said. The motion said that the CMP

“did not form part of either the Liberal Democrat or Conservative manifestos in 2010, nor the Coalition Agreement.”

It also said:

“Existing arrangements for handling secret information in court”

that is, PII—

“work well, with decisions about sensitive disclosures being made by a judge rather than an interested party”.

It continued:

“These proposals risk further undermining the reputation of British Security Services”

and called for the

“Coalition Government to withdraw Part II of the Justice and Security Bill”

and for all

“Liberal Democrats in parliament to press the government to do this and in any event to press for the withdrawal or defeat of Part II of the Justice and Security Bill.”

That did not happen, and I understand that there will be a motion at the spring conference—

Julian Huppert (Liberal Democrat, Cambridge)

I am sorry to intervene after so many hours of uninterrupted speech, but the hon. Gentleman is factually inaccurate in much of what he says. I will happily talk about the details of Liberal Democrat conference procedures if the occupant of the Chair wants me to, but I suspect that he does not. Now that the hon. Gentleman has finished reading the motion, will he make it clear whether he agrees or disagrees with it?

Andrew Slaughter (Labour, Hammersmith)

After accusing me, usually on Twitter, perhaps the hon. Gentleman will put a little more concentration into what is said in the debate and do a little less fiddling with whatever device he has. I have made our position clear three or four times, and I suggest that he goes away and reads the transcript. He will then be more than clear; his policy certainly is not. I understand his embarrassment. He was the person put up by the leadership to move the motion that was defeated.

Where are the Liberal Democrats on this Bill? I have heard at least four positions. The position of the noble Lord Wallace of Tankerness is effectively the Government’s. There is also the position of many Liberal Democrat peers in, to their credit, supporting the House of Lords amendments; the position of the Liberal Democrat conference to junk the whole thing; and the hon. Gentleman’s position—I believe that he will speak to that—which seems to be critical of some aspects of clauses 6 and 7. He is clearly critical of equality of arms and the Government’s provisions on gisting.

If that is right and the hon. Gentleman accepts the logic, why is he limiting his criticisms and his agreement with the Joint Committee simply to those important but not central parts? Why is he not supporting last resort and PII first, and why is he not supporting those essential parts, including the widely balanced CMP, which their lordships, including some eminent jurists on the Liberal Democrat Benches, thought were a vital safeguard in the Bill?

If the hon. Gentleman is of that mind, I suggest that he does not press his amendments, but supports our amendments to amendment 55, which would do no more—[Laughter.] The hon. Gentleman is laughing, and I suspect that he will be laughing at himself when he looks at the difference between his position, which seems unsustainable, and that of some of his colleagues in the other place, which is very clear.

All we are asking for in our amendments to amendment 55 is that clause 6 should be put back to what it was before it left the other place. Either the Liberal Democrats have civil libertarian principles, or they simply wish to pay lip service to those principles and when it comes down to it they will back a reactionary Government in trying to restrict as far as possible the ability to conduct open and natural justice.

Julian Huppert (Liberal Democrat, Cambridge)

It is a pleasure, Mr Gray, to have a chance to speak in this debate. I am speaking to amendment (a) in my name and that of my hon. Friend the Member for Edinburgh West.

I apologise to the Committee, but I am not a trained lawyer. I used to be a scientist. When scientists publish a paper, they are not paid by the hour or the word. In fact, if they write something that is too long, they have to pay excess page charges.

It is tempting to deal with some of the comments of the hon. Member for Hammersmith. He is factually wrong in much of what he says—I did not move the motion, for example—but I do not have time to go through every single thing, and in many ways his errors are irrelevant.

Interestingly, though, the hon. Gentleman refused to answer my question. He referred to the overall position of the Liberal Democrats. It is the Labour party that wants to sound concerned about CMP but, as we heard in earlier exchanges, supports the principle of CMP while trying to present a different impression. I do not want to spend all my time on that, however, because I will be told off by you, Mr Gray.

I wish to focus on the amendments and, in particular, amendment 55. It does a number of things: it changes a process, but it also omits some other steps, which I will deal with separately. I am interested in clarity, so I have a number of questions about the system and how it might work. I will try to make my questions clear, which I may have failed to do previously. The Minister can respond when he speaks, because I suspect it may take some time to get the correct answers from the officials. If I am ever not clear, the Minister should, please, intervene at any time, because I will be happy to clarify.

All Liberal Democrats are instinctively uncomfortable with the concept of closed material proceedings. Instinctively, we feel that it is wrong for people not to be able to know the case against them. We have argued that on many occasions, when the previous Government made such provisions. If CMPs are to happen, they must be clearly controlled and regulated, and must be used as a last resort. They already exist in UK law—some parts of the press have suggested that they are a complete innovation, but that is not true. They were brought in by the Labour party to deal with control orders, which also allowed internal exile without trial; they continue, to my regret, in the new terrorism prevention and investigation measures; and they are used in employment tribunals and cases before the Special Immigration Appeals Commission. They are present in UK law—I may not like it, but that is a fact.

Meg Hillier (Labour, Hackney South and Shoreditch)

The hon. Gentleman talks about not liking CMP but the alternative procedure has been to have no evidence in any environment, whether public or private. Can he move off the fence and be clear? Does he prefer the old regime or does he support the move to some sort of judicial process, even if in a secret environment?

Julian Huppert (Liberal Democrat, Cambridge)

I was about to talk about exactly that requirement to balance. If we go down this route, we have to have the right balance to ensure safeguards. That is a balance that must be struck, and that is exactly what I was about to say. I hope that whoever first drafted CMP into law, for immigration cases, I think, considered carefully how to balance and control such proceedings and how to take something fundamentally exceptional—that someone does not know the case, in exceptional circumstances—and to get the right solution.

How far should we go? Which cases should be covered? I am delighted—I think that the hon. Member for Hammersmith mentioned this—that inquests are no longer included. That is an important step forward. I am also grateful for the assurance I received at the time of the Green Paper, that no criminal cases were covered, nor indeed cases in which liberty may be at risk. That is an important point, because we would all agree that there are circumstances in which it is simply not right for people to be, for example, jailed without knowing the case against them.

My first question for the Minister is about habeas corpus cases, in which liberty can be at risk. Can he confirm that CMP would not be used in such cases?

The current PII system is by no means perfect. As the hon. Lady mentioned, I do not like the idea that evidence is simply silenced, but PII is tried and tested. It has been brought into balance, controlled and whittled down, and it is used only if necessary.

The Minister said that no more information would go into closed courts under the new scheme than can currently be silenced by PII. That is important for those of us who want transparency in such areas. May I check, though, that that is right? Under PII, as I understand it, the judge is able, through common law rules of court, to require one side to redact information, produce relevant extracts and order a summary of the relevant parts, and to require partial disclosure. Will a judge have the power to do that for national security information once a CMP has commenced?

I will try, as I said, to flag my questions up clearly, so my second question to the Minister is, will he confirm that in all circumstances only material that would be covered by PII would go into CMP and that nothing that would otherwise have been revealed would be concealed as a result of the process?

To return to amendment 55 and my amendment, amendment (a), in particular, one of my big concerns about the Government amendment is that it omits all reference to PII in the process. The House of Lords carefully and deliberately put in clause 6(5) and (6) measures on PII, deliberately based on JCHR recommendations. I accept that perhaps they did not phrase the clauses perfectly. None of us wants exhaustive PII or a Minister tied up for a year exhaustively going through paperwork, if it were obvious to all concerned that it was not needed and there was no way that PII could lead to a case, but we need to do something.

All the judges in the al-Rawi case agreed that cases should go through PII before looking at a CMP. The power should be with the judge specifically to consider whether PII could have been used. The provision should require the Secretary of State, or whoever the relevant party is, to have, at the very least, considered PII and given reasons why it was not possible to use it, before applying for a CMP. [Interruption.]It is a pleasure to have the support of the hon. Member for Hammersmith. It may be that the case is so saturated with PII that that is enough. Although the Lords amendments are not perfectly worded and could be clarified, I do not see why they should be deleted.

The Minister implied that his intention was still to have PII going through, despite taking it out of the legislation. My third question is, will the Minister confirm that his intention is that CMP cases should be considered only after PII has been considered and rejected as an option? If so, how will he ensure that that is in the legislation so that it is clear for all to see? It is essential to be clear about whether the aim is for CMPs to be a last resort when nothing else will work, or for CMPs to become gradually standard practice whenever some sort of intelligence material is involved.

My fourth question is, can the Minister be expressly clear that, regardless of the wording, his intention is that CMPs would always be a step of last resort, as in clause 6(2)(d)? If that is his intention, we can come on to the wording later.

Heidi Alexander (Labour, Lewisham East)

When we discussed that element of the Bill on Thursday, I believe that the Minister said that the requirement was implicit in amendment 55. If the Minister feels that it is implicit, would it not be better to make it explicit and put the requirement in the Bill?

Julian Huppert (Liberal Democrat, Cambridge)

I thank the hon. Lady for her comments. That is in essence what I am trying to do. My aim is to understand what the intention is and then to ensure that the legislation fits the intention. The requirement would be much clearer if it were explicit, and that is why we tabled amendments to that effect.

Amendment (a) returns PII to its rightful place, keeping clause 6(5) and (6) as they came from the House of Lords and the JCHR. They could be improved and tweaked so that they worked better, but that is not what the Government amendment does. The Government amendment removes them completely.

Amendments (b) and (c) deal with how CMPs can be triggered. The Minister and I discussed that earlier in the proceedings. He said that the Government’s intention is equality of arms, but the Government amendment is deficient in that regard. It does not allow claimants—the non-Government party—to apply for CMPs for material that they do not hold. The Minister accepts that that is the case and, if I have understood his position correctly, says that there would be a very high hurdle for such a person to reach, so they would find it very hard to make an application. Therefore, the court would be allowed to do it of its own motion. I have no problem with the idea that the court can do it of its own motion. I welcome it. It may help.

There are two points. First, if the process of a court working on its own application works, why not have that as the sole route? The Secretary of State could go through the same process. If it is a process that works, it works for everybody. It would be a clearer example of equality of arms if it were the same for everybody.

Secondly, the Minister may be right that it is a high hurdle. I came up with some cases where I think it will be achievable, but I accept that it will be tough. However, that is not an argument for specifically barring it, or having a complexly worded amendment, with two first conditions, one in new subsection (1C) and one in new subsection (1D), barring it while an alternative is provided. Equality of arms does not mean equipping one side with a sword and telling the other person that they are not very good with a sword, so they should use a trident. It might mean giving both sides a trident, or allowing them a choice of which weapon to use. I use the term trident in deference to the hon. Member for New Forest East. I was originally planning to use the term Morning Star.

My fifth question is, other than the fact that it may be a hard process for a claimant to have the option of going through the same route as everybody else, what problems does the Minister see in allowing other parties to apply directly for a CMP, as well as having the option of going straight through the court? Let me return to amendment 55, which introduces a new test. It replaces the Wiley balancing, about which we have heard so much, which balances national security against the public interest and the fair and open administration of justice, with the new test of

“the fair and effective administration of justice”.

I am not a lawyer, so my question to the Minister is, what is the difference between those tests? My sixth question is, which test sets a higher bar? What will be required for a case to pass the old test, but fail the new test? Why does the Minister want to remove regard to open justice, which is a principle I think we all hold dear?

My last point is something of a subtlety. I failed to spot this point on several readings, but I finally spotted it this morning. I am pleased that I did. I pay tribute to Jo Shaw—a Liberal Democrat colleague who moved the motion that was discussed at the Liberal Democrat conference—who pointed out this issue to me several times before I finally got it. Government amendment 55 introduces a very subtle change to the original wording in subsection (2). Subsection (2) states that the declaration applies when,

“a party to the proceedings…would be required to disclose material”,

and when

“such a disclosure would be damaging to the interests of national security”.

As the Bill stands, the disclosure itself must be damaging to national security. Amendment 55, however, relates to disclosure of information—it is the information that must be damaging to national security. That is very different. The hon. Member for Hammersmith mentioned confidentiality rings. A confidentiality ring, where the disclosure does not break national security, will be caught by the amendment, but not by the original text. The amendment applies to material that is damaging to national security, rather than disclosure. It is quite a subtle difference.

Andrew Slaughter (Labour, Hammersmith)

This is a sneaked-in change, but a significant one, as the hon. Gentleman points out. I appreciate that his amendment deals with PII. Given what he enthusiastically said about last resort and Wiley balancing, does he, in addition to tabling and supporting his own amendments, support the Opposition amendments, in particular amendment (g), which would put Wiley balancing and last resort back in?

Julian Huppert (Liberal Democrat, Cambridge)

I thank the hon. Gentleman for his comments. I will come back to confidentiality rings briefly. He will know that we tried hard to get our amendments in on time, assuming that the vote would happen on Thursday. That required getting them in on Monday, so I am not saying that they cover every single issue. I would like to hear the Minister’s answers to the questions I put. I hope the Minister will give clear and satisfactory answers to everything. If he cannot, we will have to see what happens. I look forward to exploring that with him. He will see the outcome when we get there.

Julian Lewis (Conservative, New Forest East)

I think I understand the hon. Gentleman correctly. He is talking about something that bears on the control principle. I believe one of the motivations behind the Bill is that serious harm was done to the intelligence relationship between the United States and the United Kingdom by the fact that material owned by the United States was disclosed in the Binyam Mohamed case, not by the content of that material. Therefore, it is not just a question of being worried that information disclosed is valuable to a potential enemy; it is the fact of disclosure itself, which can harm an intelligence relationship. That is a legitimate matter for the Bill to address.

Julian Huppert (Liberal Democrat, Cambridge)

I bow to the greater expertise of the hon. Member for New Forest East, on the details of the controlled release of intelligence. I think what he is talking about is the Norwich Pharmacal issues, which we will come to later. Part of the issue here is that this could include disclosure to somebody’s own lawyer. The test under the amendment is just, “Is this sensitive material?” in which case, they are speaking of whether any disclosure could happen as oppose to being concerned about who it is being disclosed to. That no longer plays any part in the process. Arguably, it would apply if somebody had information and was required to disclose it to the Secretary of State, which seems a bit odd given the process.

The question I have for the Minister is whether this is an inadvertent change in the drafting that accidentally happened in the desire to give clarity—I have seen that happen with other legislation in my short time here—or whether it is the Minister’s intention that this should exclude things such as confidentiality agreements. I think that is very important, and that is my seventh question.

I hope to get some clear answers to those seven questions. My first question is to ask the Minister to confirm that closed material proceedings could never be used in habeas corpus cases, in which liberty could be at risk; my second is to ask him to confirm that in all circumstances the only material that would have been covered by PII could go into CMP and that nothing that would otherwise be revealed would be concealed; my third is to ask him to confirm his intention that CMP cases should be considered only after PII has been considered and rejected as an option, and how he would put that in the legislation; my fourth is about whether it is the Minister’s intention for CMPs to be specifically a step of last resort, as in clause 6(2)(d); my fifth is about what problems the Minister sees in allowing other parties to apply directly for closed material proceedings other than it being a hard hurdle for them; my sixth is about which test sets the higher bar—the new or the old test—and what exactly the difference is; and my seventh is whether he intended to cover confidentiality agreements in the drafting, and whether they should be able to continue under this legislation, perhaps with the drafting corrected or not. Those are the seven questions.

Meg Hillier (Labour, Hackney South and Shoreditch)

The hon. Gentleman has given a very detailed exposition, and one could ask about angels dancing on pin heads in regard to some of the detail he has gone into. It is interesting, but I am a very simple woman and I would be very interested to know whether the Liberal Democrats are actually in favour of CMPs with proper judicial safeguards, as is the case for the official Opposition. It would be helpful for me in understanding the exact position of the Government Front Bench if he could be really clear on that.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the hon. Lady for her comments. I understand that there are rules and that I cannot accuse her of misleading the House, but she is certainly not simple and she knows that perfectly well.

The position of the Liberal Democrat party is as set out in our conference motion. We are in fact a democratic party—

Meg Hillier (Labour, Hackney South and Shoreditch)

I do not follow the Liberal Democrat conference as closely as the hon. Gentleman, so perhaps he could explain that in words of one syllable.

Julian Huppert (Liberal Democrat, Cambridge)

The hon. Lady is definitely missing out. We have a very clear democratic process whereby, for example, we do not exclude people under terrorism laws just for heckling. It is a wonderful process, and she should try a democratic system if she wishes to.

Let me conclude on a positive note, and welcome new clause 5.

Meg Hillier (Labour, Hackney South and Shoreditch)

With respect, the hon. Gentleman has not answered my very direct and simple question.

Julian Huppert (Liberal Democrat, Cambridge)

I think the answer was very clear—it is as stated in the motion that the hon. Member for Hammersmith read out. I am sure he will be happy to pass her a copy of the entire motion, so that she can have a look at it.

Let me finish on a positive note—and I am getting indications from the Chair that I ought to do so—and welcome new clause 5. New clause 5 is a clear step in the right direction because it allows the judge to change his mind as the case develops. That is welcome. It is a small step; I do not think it goes far enough, and I will be listening with great care to what the Minister says in response to my questions.

We are all concerned about national security, and we also ought to be concerned that justice be fair and transparent. We face a challenge in balancing that. From what I have seen so far—I look forward to the Minister’s further comments—the Government amendments walk away from that balance in a way that would be simply unacceptable. If the Minister wants support for his proposals, he will have to answer my explicit questions and deal with those concerns, both in speech and in terms of what the legislation will say.

Andrew Slaughter (Labour, Hammersmith)

Will the hon. Gentleman give way?

Julian Huppert (Liberal Democrat, Cambridge)

The hon. Gentleman has spoken for a while, but I will let him speak now.

Andrew Slaughter (Labour, Hammersmith)

I think that the hon. Gentleman’s questions are good questions and I am quite keen to have the answers to them as well, but I am wondering why he has posed them if, as he has just said in response to what my hon. Friend the Member for Hackney South and Shoreditch said, he supports the motion that the coalition Government should withdraw part 2 of the Justice and Security Bill. Surely his position is therefore that clauses 6 to 13 should be deleted. That is what he has just said. I am genuinely confused. Is his position near ours, which is to support the position taken by the House of Lords on clause 6, or is it what he has just said, which is that CMPs are inappropriate and this part of the Bill should be deleted?

Julian Huppert (Liberal Democrat, Cambridge)

I realise that the hon. Gentleman, in his speech on this subject, covered a range of material. As I understand it, we are debating amendment 55, which does not have the flexibility to do exactly what the motion says. I was interested to see that he failed to answer my question earlier about whether he agreed with the motion. I think that it is clear that the Labour party is in favour of CMPs, which is a reasonable position to take—it is consistent with what it did while in government—but it is also in favour of making it look to the press as though it opposes them. That is a very interesting and complex position. I have been very clear. I look forward to hearing what the Minister has to say.

Paul Murphy (Labour, Torfaen)

I had not planned to speak at this stage, but the speech by the hon. Member for Cambridge woke me up this morning, so I would like to make a number of points, some of which will relate to what the Minister might say in his winding-up speech.

I agree with much of what the hon. Member for Cambridge said. It coincides almost precisely with what my hon. Friend the Member for Hammersmith has been saying. However, I want also to emphasise what my hon. Friend said just now about where the Labour party stands on this. Our view, I am sure, is pretty clear. It is that we agree with CMPs so long as there are proper safeguards. The House of Lords put in very important and detailed safeguards relating partly to what the Joint Committee on Human Rights has said, but to other things as well.

I am troubled by the fact that the Government do not seem to have wholeheartedly agreed with their lordships in these matters, so the question that I pose to the Minister, for answer when he winds up, is this. Why have the very sensible safeguards that were inserted in the House of Lords in effect been changed—quite dramatically, in some ways—and replaced by further amendments, which the Minister is to move? It seems to me that the Lords amendments were very sensible and reasonable.

I am puzzled by the points of view that the hon. Member for Cambridge has expressed. I am puzzled because, I suppose, I have not encountered a Committee like this for some years—one taking place when there is a coalition in government. It seems to me that the members of coalitions are supposed to work together. That is the idea, anyway—that they agree with each other on certain things, which are written down in a document at the beginning of a parliamentary Session. However, the hon. Member for Cambridge has on a number of occasions said “We”—“We are doing this” and “We are doing that”, by which I assume he means he and his hon. Friend the Member for Edinburgh West. The two of them are here, representing the Back Benchers of the Liberal Democrat party.

However, I am told that there is a Liberal Democrat Minister among the Ministers in the Home Office—the hon. Member for Taunton Deane (Mr Browne). I assume that they talk as Ministers from time to time and, if they do, that the hon. Member for Taunton Deane, representing the Liberal Democrats in the Home Office team, would have been putting forward certain views on these issues—because they are very important—reflecting, I dare say, what the hon. Member for Cambridge would or would not like to be put in.

Therefore it puzzles me, when we come to this point, that semi-official Liberal Democrat amendments appear to be being tabled against their own Government. Either these are Back-Bench amendments from the Liberal Democrats that have nothing at all to do with their coalition status or they are not. I suspect that, as the Committee’s scrutiny goes, that sort of puzzlement will continue. There is a conflict. The Liberal Democrats are in government, and they have to accept that. Sometimes it is hard: when I was in government, I did not agree with everything we did, but that is the nature of government—it is called collective responsibility.

I wonder where the Liberal Democrats stand. If their official policy is that they do not like CMPs—they are agin them—as my hon. Friend the Member for Hammersmith said, that should presumably be reflected in the coalition agreement. It clearly is not. We are at a loss as to where we are in all this; the public will be as well. My party has made our position clear: we want to see CMPs, but with proper safeguards.

Meg Hillier (Labour, Hackney South and Shoreditch)

My right hon. Friend makes an important and serious point. We know that there is a very serious and real threat to this country from terrorism. If we believe in the civil liberties of the majority, we have—proportionately, carefully and thoughtfully—to make sure that we have safeguards in place. I would hope that the Liberal Democrats also believe that, and I am sure that, from what he is saying, my right hon. Friend would as well. I remain unclear about the Liberal Democrat position.

Paul Murphy (Labour, Torfaen)

Indeed. Perhaps when the Minister winds up he will indicate whether he is speaking on behalf of the coalition Government, including the Liberal Democrat Members.

No one wants CMPs. No one would have dreamt them up as a great theory or institution. They are there because of the dreadful times we now live in. The situation is a second best—of course it is—but we therefore have to put proper safeguards in, as well. The idea that we have to pay off people who cannot take civil action because such actions would reveal national intelligence secrets, and that we should pay out perhaps tens or even hundreds of thousands of pounds, is crazy. Therefore, it is important to have CMPs, but we also have to have the safeguards.

I am completely unclear as to where the junior partner in the coalition stands on this issue. The Liberal Democrats cannot have it both ways: either they accept the coalition position on what they have to do, or they do not. That position is not very good at the moment in terms of what their lordships are doing, but at least the coalition Ministers say that they will accept these measures. However, from the point of view of the hon. Member for Cambridge, I really do not know where the Liberal Democrats stand.

Julian Brazier (Conservative, Canterbury)

May I say, Mr Gray, what a pleasure it is to serve under your chairmanship? Given your specialist knowledge in constitutional issues, it is particularly appropriate that you should be chairing the Committee. It is a pleasure to follow the right hon. Member for Torfaen; I will come back in a moment to something that he said. May I also say, Mr Gray, that I hope you will indulge me if, following a conversation with Mr Crausby, I take my remarks a little wider than the scope of the amendment. I do not intend to try to catch your eye on clause stand part, as both the Government and the Opposition Front-Bench teams have made it clear that the amendments go to the very heart of clause 6.

James Gray (Conservative, North Wiltshire)

Order. On that issue, it is unlikely that we will have a clause stand part debate, because this debate has been fairly wide. I have indicated to the Minister that he may go slightly wider than the scope of the amendment under consideration. Marginally wider is all right.

Julian Brazier (Conservative, Canterbury)

Thank you, Mr Gray. If I may say so, that is very wise, because without the Government’s amendments, the Lords amendments to the Bill would hugely dilute the capability of this measure. If I may say so, some aspects of the Opposition amendments seem to be a bridge too far in terms of proportionality; I am thinking especially of new subsection (6A)(c), as proposed by amendment 68.

I would like to declare an indirect interest. A very dear friend of mine was extremely badly wounded serving this country. He has recently recovered from an operation for his wounds. He has been decorated for gallantry. He has recently been accused in media, which I will not name because I do not want to identify him, of incidents of brutality. The accusations are wholly untrue.

So far, the situation has not turned into a court case; should it do so, the nature of the extraordinarily brave and dangerous operations he took part in is such that, along with the organisation that he worked for, he will be faced with a choice between keeling over and paying out money to people who are lying and are undoubtedly enemies of this country, or disclosing material that it is not in the national interest to disclose.

I went back to check the record on the exchange I had with the hon. Member for Hammersmith on Thursday. He said,

“I am saying exactly what the independent reviewer said in relation to those matters, which is that a system founded on PII—in other words, the system that pertains at present—does not threaten national security.”––[Official Report, Justice and Security Public Bill Committee, 31 January 2013; c. 138.]

I challenged him at the time to say whether he really believed that release of information was the only way in which national security could be damaged, and he said that it was not.

The fact is that, at a time when this country’s enemies have an immensely powerful propaganda effort that has changed the minds of huge numbers of young people, damage to reputation is absolutely critical in national security. So, too, is the morale of members of our armed forces, our Security Service, our intelligence service and other groups who are engaged in the struggle—I hate it being called a war—against international terrorism.

Andrew Slaughter (Labour, Hammersmith)

I respect utterly the spirit in which the hon. Gentleman makes his remarks. Reputation can be argued either way; earlier I began to quote—I stopped half way through—the Liberal Democrat policy, which we now know, which is that secret courts risk

“undermining the reputation of British Security Services and damaging public trust and confidence in those Services due to judgments in the CMP handed down in secret, after a trial potentially held entirely behind closed doors from which parties to the litigation other than the Government are excluded.”

I do not take that point, but that may be one that he will want to discuss with his coalition partners. My point was quite different; it was in relation to procedural fairness. That is the issue that should be under discussion. Matters of reputation and payment of damages are important issues, but they are absent liability; they do not go to the heart of whether this is a fair process.

Julian Brazier (Conservative, Canterbury)

I will come back to the hon. Gentleman’s wider points in a moment, but the key point I am trying to establish is that it is absurd to pretend that the only issue of national security is the release of information. That strand of argument goes one stage further: in the subsequent exchange that he had with the Minister and myself, he suggested that, with a PII system, damaging material could never be released.

The Minister pointed out one exception to that: if the other party does not agree to settle and I pointed out that there is an equally, or arguably more, important case where such would be the damage to national standing if, for example, allegations of direct torture were made against our Security Services, we may have to choose—indeed, my friend may be in a position where a decision has to be taken—to release material that potentially puts people at risk in order to prevent the worse consequence of a very powerful lie being propagated all over the world.

I would like to come back for a second to the profoundly important intervention that the right hon. Member for Torfaen made on the last group of amendments. He spoke only for a moment—perhaps other members of the Committee may benefit from the idea that brevity sometimes carries a point powerfully—but he said that when he was doing one of the most difficult jobs that exists in any form in this country, being Secretary of State for Northern Ireland, he found himself, almost on a daily basis, needing to balance the interests of justice and national security. I, for one, was not one of those Members of Parliament who cheered when, from time to time, we saw Labour Ministers—often Home Secretaries, but sometimes Secretaries of State for Northern Ireland—facing what I regarded, frankly, as deeply unwise rulings from the courts.

We need to remind ourselves that clause 6 and the amendments thereto deal only with civil proceedings. We are not talking here about issues involving sending people to prison. Some of us feel that the Government—perhaps under pressure from another place—has in some ways given away too much. I tried very hard to listen to the contribution of the hon. Member for Hammersmith, although it was extremely long and he had to be held up for producing overlong quotes. Again and again we heard him give quotes from lawyers, from judges, from politicians, from the Joint Committee on Human Rights and from speeches in another place, but the key thing is that we did not once hear him quote the brave men and women whose lives are potentially at risk because of the material we are discussing here. With permission, I will now quote Baroness Eliza Manningham-Buller, who spent a lifetime working in this area.

“At the moment there is no justice at all in civil cases where individuals sue the Government for compensation, claiming, say, mistreatment or complicity in torture. Because the secret material held by the authorities cannot be used in court, the Government is forced to settle without a judge examining the merits of the claim. This is immensely damaging to the reputation of the Government and the intelligence and security agencies which cannot defend themselves”.

I have many commitments, as do all of us here, and I feel I have come to this a little late, but I have participated in some of the media activity around this. One of the things I found most upsetting in this debate was the suggestion by those on the other side of the argument that, unless one accepts certain principles of law as absolute, one is going against generations and centuries of legal tradition.

However, as the right hon. Member for Torfaen hinted, in this country it was widely accepted until very recently that a balance must be struck between national security and principles of equality of arms and so on. I would like to quote Lord Denning, who was speaking on a case that took place in 1977. That case was outside this provision, because it involved a deportation order. We are not going for something as wide as this; as we all know, we are dealing purely with civil cases. Lord Denning added these words to the final judgment in 1977:

“But this is no ordinary case. It is a case in which national security is involved, and our history shows that, when the state itself is endangered, our cherished freedoms may have to take second place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted and the courts have loyally followed”.

If you will allow me, Mr Gray, I will give another historical quote, going a little further back. During the second world war, Churchill and his Government—a coalition Government, of course—chose to intern a huge number of potential suspects. Given the importance of suppressing the German spy effort, initially there was no sifting or attempt at individual justice at all. In the famous Liversidge v Anderson case, the Law Lords voted four to one. I would like to quote from the minority finding by Lord Atkin, who stated in his dissenting speech that:

“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”.

In other words Lord Atkin took the view that legal principles were absolute, whatever the circumstances, and he has been quoted approvingly again and again. Had his view held sway, and had the Government chosen to accept the ruling of the House of Lords, we would probably have lost the battle of Britain, because in releasing all the many innocent Germans we had interned, there would have been a few spies among them and vital information on the weakness of our war effort would have reached German high command.

Bob Neill (Conservative, Bromley and Chislehurst)

I understand my hon. Friend’s point, but I respectfully draw his attention to this distinction, which is important. What Lord Atkin was saying was that if there were exceptional circumstances where the normal rules of the court should be overridden, effectively that has to be done by the legislature, because the legislature is democratically accountable. In a sense, that is what is being done with the system we are looking at here. So it does not seem to me that it falls foul either of his argument or of the principle that things shall be done in accordance with the rule of law, either as enacted by this House or by the courts acting within the framework of law.

Julian Brazier (Conservative, Canterbury)

I am happy to defer to my hon. Friend on that point. There was an issue of speed involved: “We could not wait,” is the argument. Either way, it makes my point. The truth is that until nine years ago when we had the Belmarsh case, it was accepted that Ministers and not the courts who took the ultimate view on what was and was not essential for national security.

I do not wish to say much more, but simply end with these comments. What we have in clause 6 is a very limited attempt to put right an injustice whereby members of the intelligence services, members of the armed forces in certain circumstances and a number of others who put their lives at risk for their country are able to defend themselves under circumstances where currently, for reasons of national security, they are unable to do so. It does indeed involve some curbing of what would normally be the natural rules of justice, but in my view it is a price worth paying. The Government are right to press to partially amend what another place has done and I support the Minister’s amendments.

Michael Crockart (Liberal Democrat, Edinburgh West)

I rise not as a member of the Joint Committee on Human Rights, but as a former member, in common with my hon. Friend the Member for Cambridge. But I was a member at the time of the inquiry and the report on this Bill. I also am not a lawyer; perhaps that partly explains why neither of us remains on the Joint Committee on Human Rights. In a previous occupation as a police officer, I was far more interested in removing personal liberties from individuals rather than safeguarding them. However, things change.

Sheila Gilmore (Labour, Edinburgh East)

I am sure than the hon. Gentleman would not want to suggest that he would want to remove any individual liberties from citizens without due process.

Michael Crockart (Liberal Democrat, Edinburgh West)

I thank the hon. Lady for her intervention, but I point out I was making a joke. I apologise for the levity introduced into these proceedings. Before I turn to the details of the amendment, it is worthwhile to deal with one small, but essential, clarification. When the original proposals were published, they suffered from being rather too broadly drawn and were described by too many in rather too lax language. There was much talk of national security being at stake and apocalyptic coverage by some areas of the press. Putting aside the Norwich Pharmacal parts of the Bill where we can at least have a debate on whether it applies, can I be clear that after looking at this area in depth, the JCHR’s view was clearly that nothing in this Bill impacted upon national security? Perhaps the Minister will confirm that this is his understanding, because too often the debate on this subject seems to polarise into a competition between those who defend national security versus those who are defenders of open justice and fairness. That is simply not the real situation. Could the Minister therefore confirm that it is his understanding—as it is mine—that national security will not be directly impacted one bit, whether this part of the Bill regarding CMP passes or not, or is amended or not?

Julian Lewis (Conservative, New Forest East)

May I remind the hon. Gentleman of the intervention I made on the spokesman for the Labour party on this very point? Although these are civil proceedings, and although it is true that information damaging to national security can in the end not be produced, the payment of large sums of money to people who may well be involved in terrorist organisations in fact gives resources to those organisations. That could therefore have a direct impact on national security.

Michael Crockart (Liberal Democrat, Edinburgh West)

Indeed; but in this Bill we are dealing with the process of law and the balance that needs to be struck on whether to allow CMPs to go forward. I do not feel that throwing out principles of law in order to safeguard morale, or to prevent money being paid out, is a reasonable balance to be struck.

Bob Neill (Conservative, Bromley and Chislehurst)

I understand my hon. Friend’s point, and usually I would be with him. However, further to the point raised by my hon. Friend the Member for New Forest East, can he not conceive that if the Government are obliged to settle against very disreputable people for significant sums of money, the headlines on any number of extremist websites in this country and beyond will be, “British Government admits and pays out £x for brutality,” and not that the British legal process is being upheld? That cannot be in the interests of this country.

Michael Crockart (Liberal Democrat, Edinburgh West)

I agree, up to a point. That may well be where we would end up. What we need to do, therefore, is to make the Bill, and this part of it in particular, proportionate to that risk. I will deal with that in greater detail later on in my remarks. However, this part of the Bill is not about national security. It is about making sensitive national security material available to a judge. The two are not the same. We must be careful in our deliberations because of that.

As my hon. Friend the Member for Cambridge has already said, this is a matter of balance. In this part of the Bill we are attempting to balance the wish, mainly though not exclusively, of the Government to be able to lead sensitive evidence key to the case with the departure from the principles of fair and open justice. In deciding whether this balance is correct, there are two questions to be answered. First, has an effective case for change been made? Secondly, is the change proportionate?

I speak in support of all and any amendments that seek to achieve the aims of the Joint Committee on Human Rights. I am sure that the Government will try to make a case that their amendment does just this, and is merely a clearer re-write of these amendments. However, I am afraid I must disagree. When the Lords amendments were agreed, the Government initially seemed warm to the prospect of accepting them in their entirety, though perhaps with some tidying-up. I had hoped that the tidying-up might be subject to informal scrutiny by JCHR to ensure that the intention to achieve its aims was checked. It is disappointing that that did not happen.

It is equally disappointing that the Government amendments were tabled so late that it has effectively prevented JCHR from stating an opinion on them. They were tabled late on Monday last week, when JCHR had already set up its programme for Tuesday. It meets again this afternoon; but by the time it will have looked at this and stated an opinion, it is likely—unless I continue speaking for an inordinate amount of time—that we will have already voted on these amendments. Again, that is very disappointing.

Heidi Alexander (Labour, Lewisham East)

I agree entirely with the point that the hon. Gentleman is making about the lateness with which the Government amendments to this clause were tabled, given the significance of the changes that could come about as a result. He is setting out his concerns about Government amendment 55, but will he be clear with the Committee and advise us on whether he will be voting against it given the problems that he has alluded to?

Michael Crockart (Liberal Democrat, Edinburgh West)

The difficulty in answering that question is that we will be voting on amendments to Government amendment 55 before we vote on Government amendment 55, so it rather depends. I am not sitting on the fence. It really does rather depend on what happens with the amendments that come before it.

Heidi Alexander (Labour, Lewisham East)

I should perhaps have made myself clearer. If the amendments to amendment 55 are not agreed to, will the hon. Gentleman vote against Government amendment 55?

Michael Crockart (Liberal Democrat, Edinburgh West)

All sorts of permutations and possibilities exist with regard to the large number of amendments to Government amendment 55. I will reserve judgment until I see what happens with those amendments, and until I hear what the Minister has to say.

Andrew Slaughter (Labour, Hammersmith)

Let me try to help. The hon. Gentleman voted for the Bill on Second Reading, but in the Independent on Sunday, on 27 January, he said:

“The Government must not try to roll back the changes made in the Lords.”

I think that that is his position here. If that is right, he must be supporting our amendments in preference, possibly, to his own amendments, because they do exactly that and no more. If those are passed, he will not have a problem with amendment 55.

Michael Crockart (Liberal Democrat, Edinburgh West)

I would never support Labour amendments in preference to Liberal Democrat amendments. Let us wait and see where we are when we vote on the amendments.

There is much to welcome in the Government amendments, including the acceptance of the change from “must” to “may”, the continual review of whether a CMP should still apply in the court proceedings, and the acceptance of the narrowing of the scope of the type of information regarded as being sensitive. I will start with a positive comment. It is welcome that the Government have moved a long way on the issue of equality of arms. It has long been an established principle that two parties to litigation should have equal treatment under the law. The original position that a CMP was open only to the Secretary of State was clearly wrong. Both the Joint Committee on Human Rights and the House of Lords Constitution Committee made that point. I will not use lots of quotes in my speech but here is one. In evidence to the JCHR, the independent reviewer of terrorism legislation described the proposal as, “Profoundly wrong in principle”. I am glad that the Government have listened to that, at least in part. However, as has already been mentioned in the debate, there are still occasions where one party, but not the other, is in a position to apply for a CMP, and that is something that must be dealt with.

Looking at the Government’s rewrite, there are, whether by accident or design, a couple of other omissions. Subsection (2)(c) states that

“the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice”.

That was a reaction to the original wording, which almost made agreement to hold a CMP a statutory duty to direct one. The amendment attempts to move the Bill to a place where a CMP is given as a tool in the bag of a judge. Once that move is made, which to a large extent has been done by allowing all parties to apply for CMP, the next question is how the judge will decide whether to allow such an application. Subsection (2)(c) is key in setting out what type of balancing would be expected of the judge.

The second omission arising from amendment 55 would be existing subsection (2)(d), which states that

“a fair determination of the proceedings is not possible by any other means.”

In taking evidence in the JCHR, we heard of many occasions when the courts had worked well to get around difficult situations, using many different means to get to a fair determination, including PII, confidentiality rings and other innovations. The clause makes the point that, while we are dealing with a set of options, none of which is ideal, a CMP, where one party does not have an opportunity to refute evidence placed before a judge, must by its very nature be a last resort.

I listened to the Minister’s point about there being an implicit need to have considered the PII process included in the Government amendments, but I prefer, as others have already said, to have an explicit condition in the Bill to ensure that a CMP is indeed a last resort. The test applied by the Supreme Court in the al-Rawi case was that

“radical departures from fundamental common law principles or other human rights principles must be justified by clear evidence of their strict necessity.”

That is a fairly clear statement of last resort and should be reflected in the Bill.

In conclusion, this part of the Bill is all about balance, but if the balance is wrong, it will not have my support.

Bob Neill (Conservative, Bromley and Chislehurst)

I did not intend to speak, but I will do so briefly. I took on board the last point made by my hon. Friend the Member for Edinburgh West, and I urge him, and perhaps my hon. Friend the Member for Cambridge, to reflect on where the proper balance is— the question of balance and proportionality is important —and on the Government amendments’ significance, especially the judge’s duty continually to review. That move is important in ensuring proportionality, particularly given the history, in both civil and criminal jurisdictions, of judges showing a willingness to be quite proactive in how they approach such things.

Michael Crockart (Liberal Democrat, Edinburgh West)

I accept what the hon. Gentleman says—continual review is welcome—but should we not trust our judges to use CMP as a tool and as a last resort? Would that not be a better position for this part of the Bill?

Bob Neill (Conservative, Bromley and Chislehurst)

If the judge has the ability continually to review the situation in any event, there is adequate power for the judge to revisit something when he feels an injustice may occur.

On a related point, my hon. Friend mentioned the concern about the use of material that cannot be challenged by the other party, and I understand that point. We would be wrong, however, to think that it is a wholly unique situation. Recalling my time in practice at the criminal bar, there are certain limited circumstances, as he will remember from his time in the police force, where evidence can be admitted but not cross-examined. There are certain circumstances where the statement either of a deceased person or, more recently, of a victim who for whatever reason cannot come before a court can be read to the jury.

Julian Huppert (Liberal Democrat, Cambridge)

The hon. Gentleman makes an interesting point that I am following carefully, but there is a difference between information that cannot be cross-examined and material that cannot be made available for somebody to look at. In the case of a statement by somebody deceased, both sides can at least have a look at what it says.

Bob Neill (Conservative, Bromley and Chislehurst)

I understand that. However, first, with CMP there is the procedure with the special advocate, which enables testing to be done. Secondly, as I indicated in an earlier intervention, if you couple the role of the special advocate in challenging with the duty on the judge continually to review, as the case develops the judge may recognise, which the party that has not seen the material may not, the tell-tale signs that something is actually triggering something that questions the evidence. His duty to review then kicks in. I have certainly seen that happen in criminal cases, so it does provide a proportionate safeguard.

Thirdly, when it comes to the final decision making, that the evidence may not have been tested or that limits may have been placed on testing is something that the judge, as the tribunal of fact in a civil case—it would be the jury in a criminal case, but that rightly does not apply here—would have to bear that in mind when deciding how much weight to attach to the evidence. It would be perfectly legitimate, even in a case under the procedure, for a judge to say, “I note that this material comes before me via this procedure, and that the procedure has certain limitations”. It is up to the judges, and it might be for them to reflect on how much weight they attach to it as opposed to the other material. However, surely that is better than saying, as we do at the moment, that the material should not be considered by the judge at all. That is why I hope it will be agreed that the proposal is a proportionate way forward.

The great advice is as my hon. Friend the Member for Canterbury suggested. If material cannot be considered at all, we are forced into a situation where the mistaken party might be obliged to settle a wholly unmeritorious civil claim. I can certainly recall—I am sure my hon. Friend the Member for Edinburgh West will think about such matters too—when I was working with police officers in much less stark circumstances than national security cases. Frankly, from time to time, there was a blow to the morale of police officers when we were dealing with organised crime. A case might have had to be dropped, because we could not reveal the identity of an informant. There were good reasons for our having to do that, but it was still a blow to the morale of those officers that someone whom they knew had done it, had walked free, but for the greater good of the system of criminal justice, they had to accept that decision. Just think how much greater that blow to morale is when dealing with issues of national security and how much greater the risks to society as a whole.

Julian Brazier (Conservative, Canterbury)

I am most grateful to my hon. Friend for letting me interrupt his powerful speech. What I am about to say goes to the heart of the matter. As someone who has been very involved in parts of the Islamic world for many years, the struggle against international terrorism is essentially a struggle of ideas. It is almost impossible to understate the power of the sort of findings that he described if the British Government seem to be admitting to committing torture because they cannot defend a case.

Bob Neill (Conservative, Bromley and Chislehurst)

My hon. Friend makes a powerful point, and that is why I, as a lawyer with concern for due process, have come to the long-balanced view that what is proposed by the Government is a proportionate means of resolving a difficult and intractable problem.

My final point comes not from my experience of a rather distant career as a lawyer, but from my more recent past as a Minister at the Department for Communities and Local Government. I want to concentrate on the communities aspect, because not only is there a risk to Britain’s reputation abroad through such settlements, which are used for propaganda by extremists, but a risk to community cohesion in this country. Those same extremist websites will be circulating in Bradford and Leeds, as much as they will be in Kabul and Karachi. There is a real risk of young people in this country being misinformed and their minds being poisoned against our pluralistic society.

Meg Hillier (Labour, Hackney South and Shoreditch)

The hon. Gentleman makes an important point. It is easy in our erudite setting to extrapolate only the simple principles, but we are talking about people, the safety of the British public, the radicalisation of young people and—I have visited the headquarters of the security services—the deaths of agents of whom we will never know the names. Their deaths are not even covered because of the secret nature of their work. We are talking about human life and liberty.

Bob Neill (Conservative, Bromley and Chislehurst)

I am really grateful to the hon. Lady. Given where our constituencies are, we know that there are communities within this very city in which that process takes place and where the inability of the Government to defend themselves against unjust claims is used to fuel that flame of radicalisation. For that reason, I hope that my hon. Friends will reflect on matters and consider that, although it is extremely difficult, if not perhaps impossible, to get an absolutely perfect solution to such matters within the balancing act that we have to undertake, what is proposed by the Government is a proportionate and sensible way forward.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We have had a well-informed and wide-ranging debate on this group of amendments and, more broadly, about the heart of clause 6. I will reflect on what right hon. and hon. Members have said in speeches and interventions, and the anxiety that is felt about closed material procedures not being perfect or optimum proceedings. Clearly, we all want to have justice in open court where that is possible, but the challenge is that that is not possible in some cases. It is important to state that a problem needs to be addressed. At times, speakers almost suggested that CMPs were inherently bad and should never happen. A more reflective view is that they are not of course the preferred option, but that they are sometimes required to ensure that evidence can be presented to the court.

We believe that the Bill is proportionate and targeted at dealing with a specific issue—namely, the fact that, since the Supreme Court ruling in 2011, our courts have said that it is for Parliament to decide when CMPs should be available. Let us not forget what the position on CMPs and civil cases was before that ruling. That point has sometimes been overlooked in this debate, and I will say more about it. We are left with a situation in which the Government are having to seek to settle a number of civil damages cases.

I certainly accept the point made by my hon. Friend the Member for Edinburgh West that the primary aim of the CMP provisions is to put material before the courts to ensure that cases that hinge on national security can be tried. However, it is important to highlight that we do not currently have a risk-free or simple solution in having to settle cases. There is an impact indirectly—sometimes, more directly—on national security, in that many of the civil damages cases are likely to involve individuals with links to extremism. Fundraising or access to funds remains central to the existence and capability of any extremist organisation and, as we have heard in this debate, there are risks that money paid out in settlements may go towards funding terrorism. Damagingly, the limitations of public interest immunity leave the public with no independent judgment on very serious allegations about Government actions.

The fact that the Government settle cases is, in some quarters, sometimes used as an indication of guilt to incite terrorism and extremism as a recruitment tool. That sense of radicalism has already been alluded to, and I take on board the short intervention made on my hon. Friend the Member for Bromley and Chislehurst by the hon. Member for Hackney South and Shoreditch about lives really being at risk. Given the complexities and sensitivities of each case, intelligence officers with knowledge of the case—and, potentially, with a live intelligence picture—often have to be involved. That means that they have to be diverted away from current operational work, with the risk that agencies’ operational capacities are consequently reduced. It is a rich picture, albeit I accept the principle that, as has been said, there are associated complexities.

In cases where people bring proceedings alleging UK complicity or involvement in detention and mistreatment, any Government defence is likely to focus on the nature of any involvement that requires the Government to breach their long-standing policy not to comment publicly on whether they had been involved in any particular operation; what the Government knew at the time, which might risk lives and the safety of sources; and what the Government had shared with their partners and what assurances had been sought or received, which might reveal the fact and nature of such relationships. All those would be central to any defence, and none of them could be put in the public domain without risking or jeopardising the safety of sources or the willingness of partners to work with the UK.

In responding to this debate, it is important to set that context. There are difficulties. There are challenges. We are not in the realms of the perfect here. I do not think anyone suggests that we are.

Julian Huppert (Liberal Democrat, Cambridge)

I totally accept that this is a complex area. Does the Minister share my concern that one of the consequences of having CMPs is that the judgment may also be partly closed as well? That will mean that the Government cannot publicly vindicate themselves. There will always be those who would say that the Government won on a technicality or some other process. This will deny the Government the opportunity to say, “We had a trial and we won.”

James Brokenshire (Conservative, Old Bexley and Sidcup)

The point at issue here is that evidence will be capable of being put into the trial and a determination can be reached based on all of that evidence. That does not happen at the moment. That is the fundamental point that we are seeking to debate here. The courts should be in a position to reach a conclusion whether someone is guilty or innocent of the civil claim that has been brought against them. That is in large measure what we are talking about here, a litigation claim brought against the Government, which the Government are unable to determine. Those who bring the claim will be familiar with the allegations that they are making.

Again, that touches on a number of points relating to equality of arms and so on. A person who is suing the Government will know the basis on which they are suing and that a determination will be reached off the back of that, whether or not the Government can defend their case and say, “No, we are not liable for those claims.” That will be public. As the hon. Gentleman will know, in those situations where we have CMPs at the moment, that determination is publicly known and is reported on in the press. I know we will touch on that in other amendments.

Julian Lewis (Conservative, New Forest East)

I wonder whether this might be a suitable point to raise something which I do not think has been mentioned so far. If this change goes through and the Government settle a case, people who are genuinely aggrieved because one of the Government’s security agencies did actually do something wrong will be more justified in saying, “Well, we feel vindicated because the Government could have used a CMP and they didn’t. They saw fit to settle and that shows that wrongdoing was done.” At the moment if an agency unfortunately crossed a line that it should not have crossed, the Government can always say, “Ah well, we weren’t able to defend ourselves because we couldn’t rely on secret material.” In future, they will not be able to say that because they could have relied on secret material but chose not to do so.

James Brokenshire (Conservative, Old Bexley and Sidcup)

My hon. Friend makes an important point. Clearly CMPs will allow evidence that is not currently adducible in court to be made available to assist the court in reaching that fair determination. Even with CMPs, however, because of some sensitivity in respect of a particular piece of intelligence, reaching a settlement may still be the most appropriate outcome.

It is important again to highlight that the cases that demonstrate current and anticipated problems in this area are pending in the courts and so, almost by definition, cannot be the subject of specific public comment. However, a limited waiver of legal professional privilege was made for Government counsel to brief David Anderson QC, the independent reviewer of terrorism. He concluded that

“there is a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”

We need to establish that there is a problem. I have outlined the reasons why there is an existing problem but equally why CMP, “for all its inadequacies”, provides a solution.

Michael Crockart (Liberal Democrat, Edinburgh West)

I thank the Minister and the Department for agreeing to brief David Anderson and allowing him to look at the matter. It would have been useful, however, if they had also agreed to allow special advocates to look at those cases. If special advocates were convinced of the need for CMPs, we would find the proposals much more acceptable.

James Brokenshire (Conservative, Old Bexley and Sidcup)

There are difficulties and limitations associated with bringing in special advocates, whose ability to act on the cases in future would be limited by the fact that the Government’s defence had been disclosed to them. There are limitations on what is appropriate. We felt that it was appropriate to bring in David Anderson as an independent reviewer to provide an external challenge, and I hope that the Joint Committee recognised the Government’s genuine attempt to provide some external input. I hear the point that the hon. Gentleman made, but there have been and continue to be real challenges and limitations, because of the nature of the special advocate’s role.

Julian Huppert (Liberal Democrat, Cambridge)

The Minister makes a fair point. If a special advocate were to see these cases, they might not be able to act on them in future. Does he agree that if a special advocate could be found who was willing to take that risk and to absent themselves in future, it would be appropriate for the Government to share the information with that special advocate, as indeed the special advocates have offered?

James Brokenshire (Conservative, Old Bexley and Sidcup)

As an eminent QC, David Anderson can provide analysis that gives insight in the various cases, and he has given evidence about that. During the Committee’s previous sitting, the hon. Member for Hammersmith quoted from the Supreme Court judgment in the case of al-Rawi. He cited a number of passages, in particular from Lord Dyson, to support his argument, which seemed to be about the unfairness or undesirability of CMPs.

There were moments when I almost thought that the official Opposition were taking a different stance on closed material procedures. I was reassured by the contributions from the hon. Member for Hackney South and Shoreditch and the right hon. Member for Torfaen that that is certainly not the case, and that the Opposition recognise the importance of CMPs, subject to appropriate safeguards, as the right hon. Gentleman put it.

Andrew Slaughter (Labour, Hammersmith)

I suggest to the Minister, as I did to the hon. Member for Cambridge, that he goes away and reads the transcript of Thursday afternoon’s proceedings, where he will find our position clearly set out in some detail. I also suggest that he looks again at al-Rawi and addresses himself forcefully to the main issue of the case. There are a lot of surrounding circumstances, but the main issue is how one ensures procedural fairness in a CMP case. That is where the Minister is in difficulties. He can have an argument with his Liberal Democrat colleagues about whether CMPs are appropriate at all, but he must address the questions of procedural fairness and when and how CMPs should operate.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I read the hon. Gentleman’s comments, some of which I followed and some of which, I have to confess, I did not; they were somewhat impenetrable. I accept what he said about the official Opposition’s standpoint and I recognise that in government Labour Members were clear about the utility of closed material proceedings. Indeed, if our roles were reversed, I suspect that the hon. Gentleman would be making a number of the points that I am making now, but mercifully that pleasure is not yet upon us.

Meg Hillier (Labour, Hackney South and Shoreditch)

Harmony may not be breaking out completely between the Government and the Opposition, but there are some grounds for agreement. Will the Minister answer the question that I asked the hon. Member for Cambridge? Is the Minister of State, Home Department, the hon. Member for Taunton Deane (Mr Browne) entirely in accord with the Minister’s views on the need for CMPs and safeguards?

James Brokenshire (Conservative, Old Bexley and Sidcup)

As the hon. Lady knows, Ministers are all bound by collective ministerial responsibility and we have helpful, constructive discussions in the Government. I am pleased to be a Minister and to be part of that collective approach.

To take the point about al-Rawi flagged up by the hon. Member for Hammersmith, the court said that it was for Parliament to legislate for any extension of closed material proceedings from the existing area where legislation permits, and that it was for Parliament to prescribe the circumstances in which CMPs could be adopted and the conditions governing their operation. That is why we are having this debate. Ultimately, it is for us as parliamentarians in both Houses to make that decision.

Mr Slaughter rose—

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will give way quickly, so I can make some progress.

Andrew Slaughter (Labour, Hammersmith)

The court also said, through Lord Dyson, that there has to be a compelling case to do so. It said that PII works well enough. The Supreme Court was clear about the issues of natural and open justice. Of course it is appropriate for Parliament to legislate, but the Minister has a high hurdle to get over regarding procedural fairness.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman seems to be suggesting that there is no problem, and that PII is a perfect solution to settle such cases. It is not, which is why the Government have come forward with our proposals.

Julian Brazier (Conservative, Canterbury)

Surely it is the Government of the day, of whatever political complexion, who are ultimately answerable for national security, and that is right. That is why it is right for the Government to table legislation to Parliament to deal with the issue.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I absolutely agree. The Bingham Centre for the Rule of Law said:

“Indeed, we consider that the prospect of claims alleging very serious wrongdoing on the part of state agencies (such as complicity in kidnapping, forced disappearances and torture—as have been made in several recent cases) being dismissed because key evidence inculpating state agencies is held to be immune from disclosure, to be a very concerning one from the perspective of the rule of law.”

That is precisely what the Government are seeking to do with the Bill. Our amendments preserve the courts’ discretion and make it clear that the ultimate decision as to whether there should be a CMP in a particular case will be for the courts.

It is important to underline the changes that have been made in the Lords, which altered where the decision would be made. Previously, it would have been for the Secretary of State to make the ultimate determination and for the court to assess whether it was reasonable, but that was altered in the other place. That is reflected in amendment 55, effectively underlining the change.

The hon. Member for Hammersmith said that he did not understand what the Government’s proposed test under amendment 55 means. I thought I was clear in my opening remarks that our intention is that CMPs should be used only in a small number of cases where they are in the interest of fair and effective administration of justice in the proceedings.

The Joint Committee on Human Rights sought to ensure that CMPs would be used only where necessary, but its amendment would require the courts to exhaust all alternatives, including PII, before ordering a CMP. That would mean going through a full PII exercise even where it was absolutely and demonstrably clear that it would be fruitless. We agree with David Anderson that a determination may be made without conducting a whole PII exercise. He said that

“if the exercise is plainly going to be futile, I do not think legislation should require it to be performed.”

The new clause reflects the amendment made in the other place to ensure that a judge has clear discretion about where CMPs should be used. In examining the question, the court will want to focus on what is fair and effective for resolving the issues in the case before it, including examining what alternatives are available. It should focus on the relevance of the sensitive material to the issues in the case, but it will also want to take into account other factors, which might include whether both parties would consent to a CMP; the importance of the sensitive material to the issues in the case; and the existence of material, such as intercept material, that the law requires can only be dealt with in closed proceedings.

One of the issues highlighted by my hon. Friend the Member for Cambridge was about which material would or would not be included. Material enclosed will only include sensitive material that previously would have been protected from open disclosure by PII, which I think is the point he was making; the practical impact is that nothing that is currently open would cease to be open. It is important to understand that and make the point again, because there has been supposition that, “Ah! Stuff that’s already out there will now be hidden behind closed doors.” That is absolutely not what is intended by the proposals in the Bill.

I turn to some of the points highlighted by my hon. Friend the Member for New Forest East and the hon. Member for Hammersmith, in particular, the Wiley balancing test. I can see that it might be superficially attractive to seek to import into the decision as to whether there should be a CMP the same test used in PII. However, our judgment is that the test is not right in this context for a number of reasons. First, PII is simply not working to enable these cases to be tried effectively; if it were, we would not have introduced the Bill. In his evidence to the Joint Committee on Human Rights, Sir Daniel Bethlehem, QC said that

“the current PII framework is not adequate, in my view, to the task of achieving a proper balance between justice and security.”

Secondly, the Wiley balancing test is used in a very different context. In PII, the judge is considering whether to exclude the material. It is appropriate for him to balance the damage that would be caused by disclosure against the public interest in disclosure. In a CMP, the judge is being asked a very different question, which is essentially whether a CMP would be a fairer or more effective way of trying the case—whether to include, rather than exclude, the material from the proceedings. That is why we think it is right to give the court the discretion to consider a wide range of relevant factors to decide the right way of trying the case. We are consistent with the JCHR; once the court has discretion it can take account of the competing interests.

I want to address the point about open justice, which I think was made on both sides of the Committee. Open justice is one aspect of fairness, but not the only one. The court must decide how to try the case fairly in the difficult and limited cases where there is material so sensitive that it cannot be openly discussed without threatening national security. Parliament is establishing the issue of principle that CMPs are the right way to try cases that hinge on those very difficult circumstances.

In the al-Rawi judgment, that decision on principle is exactly what the courts urged us, as legislators, to take. It is our view that the court should focus on the right way to try the issues in the case before them, and not be asked to rule in each case on whether CMPs are inherently fair or unfair. I think we have reached a broad consensus on the principle and can all agree that there may be circumstances when CMPs are necessary. Judges have said that whether they should be used is a matter for Parliament to decide. In a further, more recent case—AHK v. the Home Office—the judge highlighted the injustice that could be caused to a claimant if a CMP was not available, and called on Parliament to provide a statutory solution.

It is important to get things into proportion. Until 2011, CMPs occurred in a number of claims. Indeed, there were a number of cases where they were used by consent of the parties, including the case of Maya Evans, which could not have taken place without a CMP. The Supreme Court decided that it was for Parliament, not the courts, to decide whether CMPs should be available.

We have also seen the forced settlement of the civil damages case brought by former Guantanamo Bay detainees, which meant that the public were denied an independent judgment on whether the allegations of torture and mistreatment had merit. There are serious problems that certainly merit this proportionate change. It is Parliament’s job to try to decide the issues of principle, and for the courts to focus on the right way to try the case before them. I am confident that the careful and anxious scrutiny of parliamentarians in both Houses is capable of arriving at a proportionate and measured decision on that principle.

My hon. Friend the Member for Cambridge highlighted a couple of points about habeas corpus, which I will address. Cases about a person’s release from detention in the UK will generally be in the context of a criminal cause or matter. CMPs apply only in civil proceedings and not in criminal cases, which is an important point to flag up. If someone is denied their liberty, I can only think that that would be a criminal circumstance.

Were it technically possible for a civil case in the UK to be in some way captured within the framework, we would face the challenge that if there was sensitive material, it would be completely excluded. There is an argument that we should work on the basis that a CMP, if it could be applied in a civil case, would bring evidence in front of the judge to make that type of decision. That is an important point to understand.

Andrew Slaughter (Labour, Hammersmith)

Will the Minister give way?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will, because I know this issue touches on the hon. Gentleman’s next set of amendments.

Andrew Slaughter (Labour, Hammersmith)

It does, and the debate on amendment 69 may well be shortened as a result. If I understand the Minister correctly, he is repeating what Lord Wallace said in the other place: if the principle of habeas corpus applied to a civil case—a case example was given in the other place—the Government would want to see a CMP applied. That is what the Minister is saying, is it not? The Minister is saying that there will be no exemption.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The point I am trying to make is that, first, the circumstances in which this issue would arise are very unlikely. Were there a case in which sensitive information was relevant, it would be appropriate for it to be considered within a CMP structure, so that the individual concerned could defend their case.

It is important that the issue is properly understood. I wonder whether the hon. Gentleman will assert in his next set of amendments that the provision is in some way about applying some sort of secret justice. That would be fundamentally untrue. The provision applies only in civil cases, so I struggle to see how it could extend in that way. We need to understand that there could be some relevant evidence that is pertinent to a particular case.

Michael Crockart (Liberal Democrat, Edinburgh West)

I realise this is stretching things a little, but if there were such a case and the evidence existed, that evidence would most likely be held by the Government. How would a third party request a CMP in those circumstances, given the amendments?

James Brokenshire (Conservative, Old Bexley and Sidcup)

We come back to the debate that we had previously about the court being able of its own motion to make a determination that a CMP should apply. In those hypothetical circumstances, no doubt the Government would seek to exclude the evidence from the case completely. The court, recognising the context, sensitivity and import of what was at issue, would be able to take a CMP in that context.

I suppose we are back to the debate we have had on a few occasions during the Bill. We believe that the provision provides the equality of arms that is important to us and to my hon. Friends the Members for Edinburgh West and for Cambridge. The court will be able to call the evidence in, rather than saying that it could not be adduced completely and would be taken out in its entirety. Again, I underline that CMPs are about civil cases, not criminal cases. The hon. Gentleman would acknowledge and accept that only in the most unlikely circumstances would the issues arise other than in a criminal case.

I shall move on and address another point made by the hon. the Member for Hammersmith. The Master of the Rolls said in March 2011 that the general principle of open justice can be set aside in narrowly defined circumstances, because open justice is subject to what Lord Haldane described in Scott v. Scott as the

“yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done.”.

The absence of CMPs could mean that substantial amounts of material, either in support of the claimant’s case or in support of the Government’s defence, were excluded from the court room. That is the key issue that we are seeking to think through and address in the amendments. The case would therefore need to be decided, if it could be in the absence of the material, with disclosure that could damage national security, or left undecided, with the Government forced into a financial settlement. Neither of those can be considered a just outcome; we want our courts to be able to get to the truth when serious allegations are made.

The Government amendments reflect key recommendations made by the Joint Committee on Human Rights, as well as views expressed in the House of Lords that judges should have greater discretion about when a CMP should take place. The amendments will empower judges to ensure that CMPs are available in cases where they are needed, but only in those cases.

I do not think that any member of the Committee would seriously disagree that proceedings should be fair and effective or that the courts should be concerned about the administration of justice. That is fundamentally the question that we seek to address. The hon. Member for Hammersmith was concerned that the test has no statutory pedigree. However, it is open to us to create new tests for what is, after all, a process for such proceedings.

The hon. Gentleman and my hon. Friend the Member for Cambridge also had concerns about equality of arms and its application. The Government have accepted the change that the court be able to order a CMP as an alternative to granting a PII application, for example. That deals with the concern that the Executive could choose between PII and CMPs as and when it suited them. We have therefore suggested comprehensive application obligations. As a consequence, it is not possible for a party to make a formal declaration application and satisfy the application obligation set out in clause 6 if they did not hold the material.

In such circumstances, it would be wholly unfair to require claimants to apply for a CMP via a process whose requirements they would never be able to satisfy. That is why the Government amendment allows claimants to sidestep that process and ask the court to order a CMP of its own motion. My hon. Friend the Member for Cambridge said that it should be up to the court’s own motion in all circumstances. That takes account of neither the knowledge that the Government would have of the material that they held nor the responsibility that the Government hold around national security. There is a need for the Government to be able to seek to apply to the court in this way.

Our judgment is that the counterparty would not be adversely affected, precisely because of the safeguard of the court’s being able to use its right, through its own motion, to order a CMP when it judges that that would be appropriate.

Julian Huppert (Liberal Democrat, Cambridge)

The Minister has got to the key issue. Why could he not allow that route? He says that it would be very hard for an applicant to apply directly. What would be the disadvantage of allowing that in addition to the process of the court’s doing it through its own application?

James Brokenshire (Conservative, Old Bexley and Sidcup)

We did not want to set up a test that the individual would not be able to satisfy. We felt it appropriate to make a provision whereby the court could order a CMP through its own motion—in essence, because of the equality of arms issue. If we had not put that point in, my hon. Friend would have a fair point in saying, “If the Government could apply, why shouldn’t a counterparty be able to apply?”

I have explained the route through which we seek to address the equality of arms point. Ultimately, the court will see the material and will be able to make a judgment about whether to grant a PII claim, for example, or to order a CMP instead, if it is in the interests of the fair and effective determination of justice.

Confidentiality rings, another of my hon. Friend’s points, are already available to the courts. While they work well in some cases, and should continue to be available in those cases, they are not the solution for the type of civil damages cases that have prompted the Bill. It could endanger national security to disclose sensitive material to a person who might be a threat to the safety of this country. If the claimant’s lawyer, but not the claimant, saw the sensitive material, there would still be a risk of inadvertent disclosure that could cause damage, and this limitation would not be possible in all cases in any event.

However, I recognise that there continues to be a role for confidentiality rings. They have operated effectively in practice in a number of circumstances, and in those cases there is no reason why they should not continue. When we have the most sensitive material, however, it is very difficult to see how confidentiality rings would provide assurance around the potential disclosure of that highly sensitive material—perhaps about sources, literally about operational activity. That is the genuine challenge around the application of confidentiality rings.

Julian Huppert (Liberal Democrat, Cambridge)

To clarify, is the Minister saying that the intention of his amendment is specifically to prevent confidentiality rings from being used in those cases? Is that implicit in the change in the amendment?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will respond directly, but David Anderson and Lord Carlile have both said that confidentiality rings are unsuitable for cases with highly sensitive material. However, they will remain available when they work—largely in cases where the person is already aware of the sensitive material in detail and the confidentiality ring would prevent the damage caused by further disclosure.

There is a genuine challenge with highly sensitive material on sources and operational activity. Even the disclosure to a non-vetted lawyer could raise significant issues of national security. That is the challenge around the operation of confidentiality rings.

Andrew Slaughter (Labour, Hammersmith)

Does the Minister accept, then, that this is a significant change, although it was not flagged in his opening, nor, indeed, in the response to the Joint Committee? That is to say, this is about disclosure to anyone, rather than a specific disclosure, and therefore it is very likely that a much larger number of cases will be caught by the CMP process?

James Brokenshire (Conservative, Old Bexley and Sidcup)

No, I do not accept that. We have already said very clearly that this process of CMPs is only for a specific and limited cadre of cases, which are non-justiciable now. I have made that point several times.

The hon. Gentleman challenged me to read his contribution from last week; if he reads mine, he will see that I specifically referenced confidentiality rings. I said that they would not be suitable on all occasions, with some of the limitations and challenges that arise.

Julian Huppert (Liberal Democrat, Cambridge)

I am hoping to get absolute clarity from the Minister. Regardless of the pros and cons of confidentiality rings that he has set out, is the intention of the amendment to change the rules surrounding confidentiality rings from what they were in the Bill before the Government amendment? In other words, does he believe that the change in language has led to any change at all in the use of confidentiality rings?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The only way in which I can respond to my hon. Friend is to say that amendment 55 provides the test that the court would need to examine whether a CMP was appropriate. That is the trigger that we are looking at as to whether something would operate a CMP. If there are circumstances where a confidentiality ring is already working, it is difficult to see why a CMP application would have been made.

As I have already said, in terms of amendment 55, the factors that the court would consider—the tests that need to be satisfied—are whether a CMP would be in the interests of the fair and effective administration of justice. With those factors, the court will consider the alternative options available as part of its process.

I say to my hon. Friend that there are circumstances where confidentiality rings will remain important, as they are utilised today. Equally, in a specific and limited cadre of cases, which cannot be dealt with appropriately by confidentiality rings because of the sensitivity of the material, it is appropriate to seek a CMP, to ensure that that evidence can be appropriately considered. At the moment, that evidence would simply be withdrawn, given PII or the case would be settled because, owing to its nature, it would not be safe to use it in a confidentiality ring. There is nothing in the amendments’ language that changes the position on confidentiality rings where they are appropriate.

It is important to flag up those points and to recognise the challenges and limitations that exist, so I am grateful to my hon. Friend for his question and to the hon. Member for Hammersmith for his probing. We need to understand that confidentiality rings can be used, but there are limits to their usefulness in certain circumstances.

Last Thursday and today, I spoke at length about why we think that it is not necessary to exhaust PII when it is obvious that a case is saturated in sensitive material. In his evidence to the Joint Committee, David Anderson said:

“I do not go so far as to say that the judge should be obliged in all cases to exhaust PII before he comes to the possibility of a CMP, but the judge should be trusted to make the relevant decision.”

We clearly state in clause 11(2)(b) that the CMP provisions do not affect the common law rules as to the withholding, on grounds of public interest immunity, of any material in any proceedings. I also believe that the Government amendments address the hon. Gentleman’s concerns; the overall aim of our package is to ask the court to consider whether a CMP would be in the interests of the fair and effective administration of justice in the proceedings.

I stress that the amendments tabled by the Government are a package of changes. We have been urged to rethink our approach and we have listened. There is, I judge, nothing between the Government and the Joint Committee on the principle of the issues and the amendments tabled reflect a fresh approach that takes account of the Joint Committee’s views. They will empower judges to ensure that CMPs are available in those cases where they are needed, but they will not be overused.

Mr Slaughter rose—

James Brokenshire (Conservative, Old Bexley and Sidcup)

I give way to the hon. Gentleman for one last time.

Andrew Slaughter (Labour, Hammersmith)

It is my last time; I will have one last try. The Minister has fallen into error in two respects. First, he has taken CMPs from being a last resort as envisaged by the other place and put them centre stage, or at least on an equal footing with other remedies. Then he has compounded that by putting into the language of his amendment—it is effectively a new clause—so many hints and prods towards the fact that the CMP will be not the last resort but the first resort, that he has completely overturned what their lordships were doing. I ask him, even at this late stage, to consider that he may be in error.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I absolutely reject the hon. Gentleman’s assertion. The judge will be able to grant a CMP only if one is in the interests of the fair and effective administration of justice in the case and there will be explicit powers to revoke a CMP at any point. I know he has tried to diss and downgrade the impact of new clause 5, but I underline what I said last week: it is an important and significant safeguard.

The judge will continue to review the proceedings and will have a point at which they will have to reassess that, to make sure that, having viewed all the evidence, their initial analysis still holds good and fast. That provides an important safeguard by ensuring that there is a continual challenge to see that a CMP remains appropriate. The court will be able to grant an application for a CMP from any party, not just the Government, and it will be able to order one of its own motion.

I trust that the Committee will support amendment 55, and the consequential amendments tabled by the Government, and will also support our new clause on formal reassessment at the end of the disclosure. I trust that hon. Members will withdraw their amendments to the contrary.

Andrew Slaughter (Labour, Hammersmith)

I want to state where we stand in relation to the amendments to Government amendment 55. I do not agree with the Minister’s comments, and if we have the opportunity when the appropriate time comes, we will press our amendments (d) and (g), which contain the substance and which, as I have indicated, would simply restore the position in the Bill, should that change, to what it is at present and what it was when it left the other place.

Amendments (a), (b) and (c) to Government amendment 55 are encompassed within our amendment. They give two nods to what the other place did, first on equality of arms and secondly on PII. To that extent, we support them and will do so, reluctantly, if they are pressed to a vote. I say “reluctantly” not because we do not agree with them but because they go only a small part of the way and because if they are passed, which I hope they will be in default of an alternative, we would not have the opportunity to press our fuller amendments.

Even at this late stage, the Liberal Democrats may wish to stop and think, particularly given that they are on the horns of a dilemma: they are saying, on the one hand, that their policy is still, as per the motion at their party conference, to junk CMPs altogether but, on the other hand, that their amendments will not go as far as those passed by the House of Lords. An acceptable middle way—I know they always look for one of those—would be to support our amendments; at least that would give some integrity and coherence to their position.

Julian Huppert (Liberal Democrat, Cambridge)

I will press our amendments to Government amendment 55 to a Division, starting with amendment (a) and going on through the others; I am slightly confused as to the exact order, but I dare say the Clerks will know that.

I have listened carefully to what has been said, and am concerned that the Minister’s intentions are in many cases not reflected in the legislation.

Meg Hillier (Labour, Hackney South and Shoreditch)

Will the hon. Gentleman give way?

Julian Huppert (Liberal Democrat, Cambridge)

I will finish what I am trying to say. The Minister has placed a lot of emphasis on the idea that the Government have accepted the principle of what the Joint Committee on Human Rights has said. That Committee will no doubt be publishing a report, and I accept that the Minister’s case will be bolstered significantly if the Joint Committee on Human Rights agrees with what he is saying, but he should reflect carefully on what he will do if that Committee, having looked at the amendments he is proposing and the state of the Bill when that Committee publishes a report, disagrees with him.

I will, further, support any other amendments that take us in the direction of improved safeguards and towards the direction of the Joint Committee on Human Rights, including Government new clause 5. However, I would like to test the Committee’s opinion on amendment (a) to Government amendment 55.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 69, in clause 6, page 5, line 32, at end add

‘except for proceedings which arise in connection with the claimant’s loss of liberty.’.

As it has been previewed, I can be brief. It is intended to be a probing amendment and to a large extent I think it has been probed and answered. It is a matter which was discussed in their lordships’ House and, as befits that august place, references were made not only to Magna Carta, but also to Edward I and the first and most ancient uses of habeas corpus.

Bob Neill (Conservative, Bromley and Chislehurst)

Richard III?

Andrew Slaughter (Labour, Hammersmith)

I see there are some supporters of Richard III, which is to the great credit of the Plantagenets amongst us, I am sure. When was it that the Welsh took over? I cannot remember.

Paul Murphy (Labour, Torfaen)

We didn’t like Edward I.

Andrew Slaughter (Labour, Hammersmith)

I am not going to repeat those arguments, but they were principally put forward by Lord Thomas of Gresford in order to indicate what a sacred and ancient principle habeas corpus has been. It was not our intention to start cherry-picking different themes, as it were, to absent from the CMP process. When the matter was put in their lordships’ House, other police matters and civil actions against the police were also dealt with, and they are not replicated in this amendment.

We have had a long debate on how CMPs should operate as an entry point. We are going to have another debate, I suspect, in substance this afternoon in relation to how evidence should be dealt with within the CMP. It is not our objective to prolong the clause 6 debate. However, on habeas corpus and what I accept from the Minister may be relatively rare cases—an example was given of how habeas corpus is a relevant matter in civil action by Lord Lester of Herne Hill, for the avoidance of doubt—I think the Minister accepts that it could be an issue in civil proceedings, perhaps to illustrate, as in that case, whether torture had been used, or whether evidence used against one party had been obtained by torture of another party who were subject to alternative proceedings.

Habeas corpus relates to the liberty of the subject and relief from detention. If those matters are engaged, even in civil proceedings, it seems to us that that should not be subject to the CMP process. I have heard what the Minister has said, and I am sure he is going to reply briefly to the points that I have made. However, I think it will be useful to hear a few more comments from him, specifically in relation to why, on this issue in particular, he believes that CMPs are, or could be, an appropriate course of action.

Julian Huppert (Liberal Democrat, Cambridge)

I will be brief on this one, as that is the tenor of these debates, but the issue is of concern, which is why I raised it earlier. The principle should be about liberty. We were talking earlier about consistent principle and I was looking at the exchange during the initial statement on the Green Paper, when I started off by saying:

“I am instinctively uncomfortable about keeping evidence secret from those in court cases”.

I then concluded by raising concerns about cases

“in which somebody’s liberty might be at risk.”—[Official Report, 19 October 2011; Vol. 533, c. 909.]

I have said very much the same thing since October 2011 and I would be grateful to get clarity, because there is an issue in civil cases about money, and there is a particular issue in cases where somebody’s liberty is at risk.

The Minister was talking about the circumstances in which one might have civil habeas corpus. I believe he is right that habeas corpus mostly arises in criminal cases, but there are civil habeas corpus cases; the Ministry of Justice has an entire website dedicated to explaining how they work and in what circumstances. Lawyers will know the exact circumstances in which that happens.

I hope the Minister will reflect very carefully on habeas corpus cases, because although we will test the principle of CMPs shortly, there is a special case when somebody’s liberty is at risk. It seems to me that nobody should be locked up or deprived of their liberty for a case that they were not able to see. I felt the same way about control orders. I hope that the Minister will reflect on the matter.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will always consider and reflect on all the debates and discussions that we have in Committee. As I have already highlighted, CMPs are restricted to civil cases, and therefore it is unlikely that a habeas corpus issue will arise. However, in the context of a habeas corpus case, we have to say that it is vital that the court be in possession of any relevant material before making a decision to issue a writ. Without all the relevant information, the court may not be able to come to the right conclusion.

The amendment as drafted would mean that CMPs could not be used in any action seeking a person’s release from detention. Where such cases involve information that cannot be disclosed for reasons of national security, the amendment would not allow judges to reach a judgment based on all the facts. Claims relating to national security should be capable of being heard, rather than having material excluded by PII.

I note that the hon. Member for Hammersmith said that this is a probing amendment, but it would have the effect of preventing CMPs from being used in some of the civil damages cases that prompted the Bill. An element of many of those cases relates to the loss of liberty of the claimant at some point, usually overseas, and the alleged involvement of the UK Government.

To accept the amendment would mean that CMPs could not be used in the very cases for which we are introducing them. The other place confirmed that there are cases in which CMPs are necessary, as we heard in the previous debate. I therefore do not believe that this House will want to remove the possibility of CMPs being used at all. The amendment would have that effect for some of the cases for which they are needed. I note the points that have been made, but it is equally a question of ensuring that all appropriate evidence is provided. With those comments, I hope that the hon. Gentleman will withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I hear what the Minister said, and I am grateful for his slightly fuller account—we had only a sentence from Lord Wallace on this matter. I do not agree with the Minister. This is an important principle. However, we have debated fully the central principles relating to this issue, so I beg to ask leave to withdraw the amendment.

James Gray (Conservative, North Wiltshire)

We shall not trouble ourselves with the stand part debate because the clause has already been widely debated.

Clause 7 - Determination by court of applications in section 6 proceedings

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 71, in clause 7, page 5, line 47, at end add

‘and that damage outweighs the public interest in the fair and open administration of justice,’.

I am sure all eyes will be on what is happening in Committee this afternoon. We had an interesting debate this morning. There were some interesting developments. Consequently, I had to go away and think about our approach to clause 7 over the short adjournment.

I had a naughty thought about whether the hon. Members for Cambridge and for Edinburgh West would have been quite so keen to vote in the way that they did this morning had the minor parties nominated an alternative to the Committee. I had the very great pleasure of serving with the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) on the Legal Aid, Sentencing and Punishment of Offenders Bill Committee. I know that he has an interest in this area and I was hoping at one stage to see him on the Committee. It is pure conjecture on my part, but he might have come to a different conclusion to the hon. Member for North Antrim.

Julian Huppert (Liberal Democrat, Cambridge)

I am delighted to reassure the hon. Gentleman that we would have voted in exactly the same way and would have been delighted with the extra vote.

James Gray (Conservative, North Wiltshire)

With regard to amendment 71.

Andrew Slaughter (Labour, Hammersmith)

I quickly put that thought out of my mind. Because of the way the vote went this morning and with the Bill as it is, we are sadly left with the defective entry to CMPs and therefore more onus rests on what happens once a CMP is activated. Amendment 71 is short. It adds to clause 7(1)(c):

“and that damage outweighs the public interest in the fair and open administration of justice.”

In other words,

“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”

and

“that damage outweighs the public interest in the fair and open administration of justice.”

It is clear what we intend by the amendment.

I believe that all parties agree on paper that if there must be recourse to CMPs, only the material that is necessary for reasons of national security should remain secret and within the closed part of the proceedings. All parties would also state the corollary, which is that material should be permitted the greatest exposure to open scrutiny consistent with maintaining national security. I think that that is the position of all hon. Members. It is certainly the position of those on the Front Benches. I will be corrected if I am wrong.

As Lord Wallace of Tankerness said on Report in the other place, a second review process occurs with clause 7, following entry into the process under clause 6. He continued:

“It is also important to remember that the process does not end with the court's declaration that a CMP may be used. It is, as has been described in our previous debates, a gateway. Stage 2, set out in Clause 7, is a process whereby the special advocate can then challenge individual documents as to whether they should go into open or closed proceedings, and this is done successfully.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1855.]

I set out in the previous debate the Wiley test, which is what this is, and the flexibility that PII has shown over time when confronting the need to balance national security and the public interest in the fair and open administration of justice. The amendment re-inserts the Wiley test into proceedings.

The House of Lords overwhelmingly supported the Wiley test as a gateway to entry into CMPs. In a sitting of the full House, the Wiley test—as endorsed by the Joint Committee on Human Rights—was approved as an essential criterion for entry to CMPs, in a vote in which the Government were defeated by 247 votes to 160. The proposal was supported by no fewer than 54 Liberal Democrat peers. The fact that a vote on inserting exactly the same words into clause 7 did not succeed might be explained by the sitting hours and the habits of their Lordships, because a much reduced House took that vote. My point, as Lord Pannick said when he moved the amendment, is that if one accepts the Wiley balance in relation to entry into CMP, it is entirely logical that one should accept it within the CMP. Such anomalies sometimes occur in democratic proceedings.

On page 14 of their response to the JCHR last week, the Government set out the reason why they object to the use of the Wiley test in proceedings. They said:

“The Wiley balance used in PII claims is for a specific purpose in a specific context. The result of a PII claim is that relevant material is excluded from the court and from consideration completely. A decision to do that must therefore carefully balance national security against the public interest in the fair and open administration of justice.

A balance of fairness and open justice on one side and national security on the other works in PII where the question is about excluding material entirely, and the impact that could have on the proceedings. But CMPs are different—the material within the CMP is fully taken into account: the interests of the individual are represented by Special Advocates, with the judge overseeing the process to ensure proceedings are fair in Article 6 terms.”

The response then mentions the role of Wiley balancing in previous examples of CMPs.

If that is the Government’s position, why should we have the Wiley test in clause 7? I will keep this quote short, but I see no point in rendering into my own inferior legal prose that which has already been articulated by one of the finest legal brains in the country. On Report in the other place, Lord Pannick said:

“Amendments 36 and 47 seek to ensure that, before ordering a CMP, the judge should ask whether the degree of harm to the interests of national security if the material is disclosed outweighs the public interest in the fair and open administration of justice. The Joint Committee stated in its report, at paragraphs 69 to 72, that the Bill as currently drafted wrongly precludes any balancing at all, however limited the national security interest may be, however substantial the damage to fairness if a CMP is ordered and, indeed, however peripheral the national security evidence may be to the issues in the case. That cannot be right; we need some degree of balancing here. I emphasise that the effect of these amendments, if approved, would not be that any evidence touching on national security would have to be disclosed—PII would prevent that—but simply that the judge could not order a closed hearing unless this balance is satisfied and the Government would therefore be unable to rely on the evidence.”

I expect that we will have a debate similar to the one we have already had about whether excluding evidence is fairer than relying on evidence in closed material procedures, but I will not anticipate the Minister’s comments. The important thing to recognise is that clause 7(1)(c) significantly inhibits a judge’s powers. It states that rules of court must secure

“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.

It does not take into account any variation in the relative strength of national security interests and other interests that are at stake. It is a considerable restriction on the usual power of the court under PII, in that disclosure may be ordered where the interests of justice outweigh those of national security. In the Committee debate, Lord Falconer made the same point. He said:

“Clause 7(1)(c) makes provision for rules of court and states that, ‘the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security’. Once even the most minor damage to national security is established, the door comes down and you do not disclose.

I cannot believe that that is what the Government intend in relation to this. They do not even include in the provision anything along the lines of ‘Before you do that, think very carefully about whether the problem can be avoided by any one of the many means currently used.’”—[Official Report, House of Lords, 11 July 2012; Vol. 738, c. 1196.]

As before, neither PII nor CMPs pose a risk to disclosure of national security material that the Government intend to withhold.

That blanket restriction on disclosure of any material that damages national security is also at odds with the statement made by the Minister in the debate last week, where he said:

“There may be cases that are better tried by using PII, such as those where the sensitive material is peripheral to the case. Clause 11(2)(b) makes it clear that PII will remain available as a tool.”––[Official Report, Justice and Security Public Bill Committee, 31 January 2013; c. 131.]

PII remaining available as a tool is not, in essence, what the Wiley balance is about. In fact, the effect of clause 7(1)(c), if amended, will be to deny the opportunity to use PII as a tool. Once the procedure has been entered, and the threshold is low as we have discussed, PII is not available as the court is not permitted to undertake the Wiley balancing exercise.

Against that background, there are five points to make. I will take this reasonably slowly, but I give comfort to the Committee that this will be the last very substantive amendment that we wish to debate; there are matters on other parts of clause 7 to do with gisting, which I know that the hon. Member for Cambridge wishes to raise, as do I, but we will begin to find the burden lightening somewhat as we go through. This, however, is a crucial amendment. Although it was not passed in the House of Lords, it should have been, and it would have been, I fondly believe, if it had been taken at another time of day. I am sure that the hon. Member for Edinburgh West will agree that it is part of that package that his Committee, the Joint Committee on Human Rights, looked at when deciding on the necessary safeguards to CMP processes.

As I said, I have five points. First, the Wiley test provides an opportunity for the court to consider the public interest in the fair and open administration of justice in a way that the Bill, as drafted, fails to do. The Government’s current version of the Bill relies on the untested and narrow fair and effective administration of justice and proceedings test for both entry into the CMP in clause 6 and exit from it in new clause 5. I set out previously several reasons why the Government’s proposed fair and effective administration of justice and proceedings test is inadequate and I do not think that, with all due respect to the Minister, when they question was put to him again by the hon. Member for Cambridge this morning, he did any better at satisfying our concerns on that; he clearly did not and the vote records that.

For those purposes, the problem with the test, untested though it is, is that it appears to narrow consideration of the important issues in question so that, first, the interests of justice hold no weight against any consideration of national security, notwithstanding that the PII procedure poses no risk to national security. Secondly, the public’s interest in open justice is not taken into account; it seems that the judge is, instead, required to consider efficacy of proceedings in place of openness. Thirdly, the scope of the judge’s inquiry is into the fairness of proceedings, rather than justice in the round.

There is a central fallacy in the Government’s assertion that their new test adequately replaces the necessity for the safeguards of the Wiley test. That is because they rely on the fact that the material within the CMP is fully taken into account; the interests of the individual are represented by special advocates, with the judge overseeing the process to ensure that proceedings are fair in article 6 terms. That is not the case; previously, I spoke at length regarding the flaws inherent in the special advocate system and I point the Committee again to paragraph 36 of Lord Dyson’s judgment in al-Rawi. Indeed, when we come to clause 8, we will look at why the current procedures, in relation to special advocates, are inadequate.

Secondly, the Wiley test narrows the potential use of CMPs once the proceeding has started. I have explained that the Government’s new amendment would widen the application of CMPs considerably, in a way that has not transparently been acknowledged, to circumstances where their use is not as a last resort. I might come back to that. The use of the balancing exercise within the procedure is all the more important where the Government propose to create a low barrier to entry in that procedure.

Thirdly, the Wiley test allows the court to respond flexibly within the CMP to the material before it. In doing so, it unfetters the judge, who, once within the CMP, would otherwise be required by clause 7(1)(c), unamended, to permit the withholding of any national security material, no matter how trivial or what other important interests were at stake. Courts are well-versed in the Wiley balance and it has a proven track record of safety. Indeed, the Government said that they anticipated that the Bill’s previous incarnation would preserve the flexibility inherent in PII. On page 3 of their July 2012 response to the Lords Constitution Committee, the Government stated that entry to the CMP is tight. They further said that within the CMP, the judge can adapt the case in the same way as under PII. They said:

“It is important to emphasise that, in reality, the Bill contemplates a two-stage test to any application for a CMP. The result is that CMPs are available in tightly defined circumstances in which the judge is given the final say over the use of a CMP and a similar level of flexibility to that available to a judge under PII.”—[Official Report, House of Lords, 17 July 2012; Vol. 739, c. 175.]

Bob Neill (Conservative, Bromley and Chislehurst)

I have been following the hon. Gentleman’s argument closely. I agree with him that judges are well versed in the application of the Wiley test, but is not the effect of his amendment, in seeking to import the test into this particular set of circumstances, to make judges do something that they have previously not had to do, which is, in effect, to come to an assessment of national security? How else can they work out what degree of national security might be damaged so as to offset that against the other interests in the case? Is that not essentially something that we regard as the responsibility of Government, and is it realistic or sensible? By what mechanism, realistically, can a judge make that sort of assessment?

Andrew Slaughter (Labour, Hammersmith)

That is exactly what judges do when they apply the Wiley test now, which is why I began last Thursday by posing a question to hon. Members, which was effectively posed again by the hon. Member for Edinburgh West: can anybody think of an example of where judicial discretion has been used to put national security material into the public arena? Nobody could. Judges make that assessment. We rely on our judiciary to act fairly, considering matters in the round, by invoking their inherent discretion. I suspect that some people, although not I, would say that our judges are quite deferential towards the security services and the Government, and tend to give them the benefit of the doubt. A better way of putting that might be that they uphold national security. They not only can adjudicate; they can exactly summate what the role of national security should be.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the hon. Gentleman; he is being very courteous. Perhaps I did not make it as clear as I could have done. Is it not the reality that here, because there is a second-stage test, as he said, the judge will have responsibility to ensure that article 6 rights under the convention are guaranteed? There are important protections there. It is an important guarantee, and there is a duty to keep the matter under review. What is added in those circumstances that could not be achieved by the Government’s current formulation?

Andrew Slaughter (Labour, Hammersmith)

Quite a lot. First, article 6 rights might not go far enough, as we discussed last week in relation to what common law requires. Secondly, given the state of the Bill at the moment—this is a point of contention rather than agreement—we have broad access to the CMP process, and therefore, I submit, it is more important that there be balance within the CMP.

My third point is on—I think I am coming on to the hon. Gentleman’s question, so I will read on and, if I have not answered it, I will come back at the end—the difference between the actual exercise of discretion that the Wiley balance gives in the CMP and the faux exercise of discretion that new clause 5 gives. I will come back to that in a moment. [Interruption.] The Minister is sighing deeply, but I am not sure how that is recorded by Hansard.

David Evennett (Conservative, Bexleyheath and Crayford)

It will be now.

Andrew Slaughter (Labour, Hammersmith)

I think the Minister ought to be able to express himself, even wordlessly.

My fourth point is that the insertion of the Wiley test in clause 7 may even give effect to some of the Government’s stated aims for the Bill. The way that that can be achieved is by providing that the measures are a last resort and that the judge is not fettered in his discretion. In that regard, it is notable that the Government’s new clause 5 provides only for the continuation or termination of the CMP on review by the judge. The Wiley balancing exercise provides an opportunity to treat each document flexibly in the appropriate way. That is essentially the point that I am making.

Fifthly, by virtue of new subsection (1F) to clause 6 in amendment 55, an application for a CMP

“need not be based on all of the material that might meet”

the two conditions. The application for a CMP may be made or granted on the basis of a small proportion of the information available in the case. The Minister said last week:

“There may be cases that are better tried by using PII, such as those where the sensitive material is peripheral to the case. Clause 11(2)(b) makes it clear that PII will remain available as a tool.”––[Official Report, Justice and Security Public Bill Committee, 31 January 2013; c. 131.]

The effect of an amended clause 7(1)(c) is, however, that once a declaration is made, any material cannot be processed using the usual PII tool. The inclusion of the Wiley balance with the CMP permits the ongoing processing of such documentation. It seems that the effect of clause 7(1)(c) is to deny the use of PII in ongoing CMP cases where it may be a better way of trying the case.

Finally, let me be clear again that the inclusion of the Wiley test in clause 7 in no way implicates a risk to national security through the release of any of the materials in question. The Bill provides the mechanism under which material may be treated and neither the Bill nor PII prevents a risk of dangerous disclosure of such information. The JCHR recommended that the Wiley balance form an integral part of any CMP procedure:

“In our view, whether or not closed material procedures are introduced into civil proceedings, there should always be full judicial balancing of the public interests in play, both when deciding the appropriate procedure and when deciding whether a particular piece of evidence should or should not be disclosed.”

As set out above, the inclusion of the Wiley balancing exercise within any CMP improves opportunities for genuine judicial discretion, permits flexibility, moderates the weakness of the current entry test into CMPs, which incorporates an unusual test in place of the last resort and Wiley balancing exercise endorsed by the other place, retains elements of PII as a useful tool and poses no risk to national security. Without the amendment, the court would be obliged to see the material in a CMP and block any disclosure to the other party. There would be no discretion. That would be the case even if the damage to national security by disclosure would be tiny and the public interest in disclosure was utterly overwhelming.

The amendments to clause 6 that the Committee has approved, with our dissent, would give the Bill a very inflexible attitude within the CMP. There is in existing clause 7(1)(c) no room for mitigation. It states that

“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.

There is no balancing test. As I said when we debated clause 6, I am sure in my own mind that new clause 5 has been introduced to act as a fig leaf in relation to what would otherwise be a draconian process.

What is lost by agreeing with the recommendation of the JCHR that the Wiley balance should apply within the CMP? The Minister, through his redrafting of clause 6, has what he wants in terms of the CMP coming into effect. As the case goes forward and evidence is presented, the judge may proactively use the Wiley balance to assess whether pieces of information should remain within the CMP. If the Government believe their own rhetoric that CMPs are not desirable and where possible need not be used, that applies not only to cases as a whole, but within a case.

Points were made this morning about reputational damage. Such damage goes both ways. Yes, matters that are embarrassing to the security services or the Government may come out if CMPs are not imposed, but if matters are kept secret when that is not necessary, the reputation not only of our security services and Government but our courts, which are held in the highest esteem, will quickly suffer.

Julian Huppert (Liberal Democrat, Cambridge)

It is a pleasure, Mr Gray, to speak briefly on this important proposal, which had the tragedy of being the only one of the Joint Committee on Human Rights amendments put to a vote in the Lords that was lost, by 123 votes to 87. As the hon. Gentleman said, it was a great shame that so many Labour peers went home instead of voting on it. I hope that if the matter goes back to the House of Lords, they will stay and vote on it. It is good to hear agreement, and the Liberal Democrats were the largest block of votes in favour of the amendment in the other place. We were consistent with our principles. I am pleased that Labour Members supported the calls of my hon. Friend the Member for Edinburgh West and me for a vote on clause 6 stand part, which they did not do in the other place.

I shall return to amendment 71 before I am told off. It is an important principle that we need consideration as we go through, because otherwise the Minister’s aim and intention could be at risk. He said that he does not want anything that would currently be open to be closed, but if a process in PII involving redaction and so on were not allowed for as the process goes through and if we do not have that judicial balancing, there is a risk that the Minister’s intentions will not be delivered. I am sure we all want his intentions on this, as in so many other areas, such as equality of arms and so on, to be delivered.

I will support the proposal, but there is an interesting side point. Now that we have agreed, on a previous clause, a different test, the test should, for consistency, probably be the same. I agree with the hon. Member for Hammersmith that the Wiley balancing test is better understood, but I did not quite follow the details of the Minister’s response about the exact differences between his proposed new test and the test in the clause. I support the proposed test on the basis that it is the one that I would like to see, but I suspect that if we do not make progress on clause 6, some adjustment may be necessary. However, I am pleased that we will try again to make the case that within the CMP we still need judicial balancing. I hope that the Minister will accept that, and make a move towards greater judicial balancing throughout the process.

Paul Murphy (Labour, Torfaen)

I do not know who went home from the House of Lords that night. All I know is that this is a coalition Government. I assume—but I could be wrong; perhaps I am old-fashioned in these views—that Liberal Democrat and Conservative peers would have stayed in order to support their Government. Perhaps I am wrong in all that; perhaps things have changed over the years. I am not a lawyer, even though this morning the hon. Member for Canterbury gave me the status of QC. I am an old-fashioned Welsh history teacher, but even a history teacher can look at amendments and realise that they are not always about the law. Even though we are making the law, we are nevertheless a body of politicians.

The amendment moved by my hon. Friend is a very sensible one. It says that at the end of clause 7(1)(c), after the words

“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”,

we should put

“and that damage outweighs the public interest in the fair and open administration of justice.”

It strikes me that the Minister would have been advised by his advisers, as I used to be by mine, that this is a redundant addition. In terms of parliamentary counsel, and in strict legal terms, it probably is not necessary, because it would be argued that the mention of national security is sufficient in itself to define what that is. Sometimes, however, we have to give reassurance. People who do not like the Bill have put forward the problem that Government—not always, but sometimes—in their definition of what national security is, effectively try to be benign, or over-cautious, while being malign in not having discussed the political considerations in the public domain, using “national interest” as the cover.

In the Intelligence and Security Committee, where we were dealing with what should or should not be redacted in reports the Committee puts into the public domain, the debate always centred on the national security issue. Will what is printed on the page damage our national security? Most of the time, the intelligence services and the advisers to the Government were right; there were, indeed, issues of national security that should not be in the public domain. However, the arguments—which went on for weeks sometimes—between the Committee members, the intelligence services and the Government, were that certain things were not connected with security interests, but were in the interests of the Government politically, and could be embarrassing if they were revealed. That has always been the argument.

The purpose of the amendment is to ensure that that does not occur; that what goes before special procedures in the courts is genuinely in the national security interest, and not in the political interest. Inevitably, Government advisers and the security services are cautious. That is a good thing, but sometimes that caution can be seen by people outside as a cover-up and that is what we are trying to avoid with the amendment. Even though technically it may be a superfluous and redundant addition to the clause, when the Minister answers he has to persuade us why, if it is not to be accepted, national security in the strictest sense is all that is required.

I am doubtful. I think that the amendment would give people reassurance. Even though it may not be technically and legally perfect, it gives the political message outside that national security means exactly what it is.

James Brokenshire (Conservative, Old Bexley and Sidcup)

First, I underline what I said earlier today. The practical impact of the Bill is that nothing that is currently in open proceedings will move to closed proceedings. We have a number of different situations where closed material proceedings already operate. I know that a number of those have been enunciated in this Committee already. To my knowledge, none of them has this type of balancing test applied as part of the detailed analysis of individual pieces of evidence, as to whether they should go into open or closed. What happens is that the special advocates do an extremely effective job, challenging, cross-examining and ensuring that items that should be enclosed are there, but that those that should not are put into open. They will push for summaries of the closed material to be provided, for material to redacted and for material to be disclosed if necessary for the proceedings to comply with article 6.

There has been some commentary during the debate that effectively would talk down the impact of special advocates and what I regard as the important and effective work that they do. I give one quote from Lord Wolff, in the case of M v. SSHD, where Lord Wolff said:

“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC…We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process.”

He went on to allow the appeal, citing the rigorous cross-examination in the closed session.

Checks and balances clearly exist in the CMP procedures that are already in effect, so I find it quite interesting to hear the official Opposition, who were no doubt strong proponents of the whole approach and structure of CMPs to date, taking a markedly different approach from the one they took only a short time ago on how to ensure that CMPs operate effectively and appropriately, and in the interests of justice as upheld by the courts.

Andrew Slaughter (Labour, Hammersmith)

I agree with everything the Minister has said about special advocates, and I do not know anybody on either side of the argument who has not said that they do a very good job. However, I remind him of the Lord Bingham quote that even a special advocate with access to material is effectively:

“Taking blind shots at a moving target.”

It is not the capacity or quality of the special advocate—on the contrary, we know they are the most excellent lawyers in their field—it is the procedure. The Minister cannot get round his problems by relying on the competence of special advocates.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The point that I make to the hon. Gentleman is that the whole CMP process in different arenas has been upheld as fair, and that the contributions that the special advocates bring to the process put information from closed into open. There are plenty of examples where that has been the case, and effectiveness has been provided through that mechanism.

Again, it is interesting that none of these issues was raised by the Opposition when they were considering the detail of their proposals in relation to CMPs; yet we are here today and they are taking a contrary view to the consistent approach that they have taken previously. It is interesting that they voted against CMPs being available for civil cases under the Bill by their vote before the luncheon break. It is interesting to hear how the Opposition are changing their position in respect of CMPs.

Paul Murphy (Labour, Torfaen)

I do not think that there is anything hugely dramatic about this. The Minister is saying that the current process is satisfactory, and I do not disagree, but he must accept that opposition to the current Bill is based on the fact that people do not have sufficient assurance that national security itself is the only issue that has to be taken into account. That is the whole purpose, as my hon. Friend the Member for Hammersmith said. What is to be lost by accepting the amendment?

James Brokenshire (Conservative, Old Bexley and Sidcup)

The point that I would make to the right hon. Gentleman is that as part of the reforms to clause 6 that the Committee voted for this morning, that focus on national security has been provided, through the judge and through the initial gateway. We then move on through clause 7, which is consistent with CMP-type processes in other spheres that some might argue are more intrusive and of significant import, in terms of whether someone should be deported through the Special Immigration Appeals Commission. They do not have the balancing test, yet they have been held up by the courts as providing a fair process, where information can be transferred from closed to open if the special advocates make that case and argue it before the court.

There are additional safeguards. The hon. Member for Hammersmith said that PII cannot apply once we have gone through the gateway and, in essence, clause 7(1)(c)—as I think he was highlighting—said that in some way, PII was therefore not applicable and not available at that point. That is not the case, as we have highlighted through a reference to the residual position under clause 11 of PII remaining available. I appreciate that the hon. Gentleman does not place value on the following point, but I think others in the Committee do, and I recognise that he tabled the amendment without sight of new clause 5: the judge, having gone through the process of assessing what should go into open and into closed, with the assistance of the special advocates, has the opportunity to consider whether a CMP remains appropriate in the circumstances. That is very important, notwithstanding the chiding from the hon. Gentleman.

Equally, the application of the Wiley balancing test is for a specific purpose in a specific context. The result of a PII claim is that material is excluded from the court and from consideration completely. A decision to do that must, therefore, carefully balance national security against public interest in the fair and open administration of justice. If the hon. Gentleman is saying that somehow more information that is national security-sensitive would be disclosed, in those circumstances, either the Government or the party that relies on the information would effectively withdraw the evidence and seek to withdraw their case, or they may even settle the case. Saying that PII is the solution to all our problems is almost an attempt to go back to our previous debate, when I think the Committee agreed that it is not. Although I appreciate the desire to try to interject PII approaches back into this stage of the procedure, I am not simply saying that the proposals are unnecessary; there are additional checks, balances and safeguards that are well understood from existing CMP processes. A structure has been tried and tested, and as part of the provisions under the Bill, there is an additional step and check before we move on to considering the relative merits and arguments of the case, by virtue of the proposal in new clause 5.

The amendment is counter-productive and it is not necessary. There is discretion is in the existing structures and process, and through the mechanisms in relation to new clause 5. I recognise and appreciate the desire of my hon. Friends and the Joint Committee; I respect that, and I do not want to suggest otherwise, but the structure of the clauses, including new clause 5, provides safeguards. With the approach on the trigger being court-based, rather than as before, from the Secretary of State—as we debated previously—a different structure is now in place. I recognise the changes that have been made as a consequence of the input from Liberal Democrat Members, the Joint Committee, and the words of the Lords in the other place. Changes have been made to the Bill to give that assurance and deal with some of the points the right hon. Member for Torfaen rightly highlighted about how powers will be used under the Bill.

A package and a structure have been created, and although I recognise the motivation behind the proposal, it was defeated in the other place, and that was the right decision. I urge the Committee to reflect on the decision taken in the other place, acknowledging the fair points that have been made. The Bill gives assurance, so I urge the hon. Member for Hammersmith to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

With your forbearance, Mr Gray, I would like to press the amendment to a vote. Before I do, I should like to take a few more moments to try, for the last time, to persuade the Minister that he is wrong in his approach. I know that he has decided and that he is on the tramlines in relation to how he approaches CMP through clause 6. The effect of that, plus clause 7 as currently drafted, is so fettering of judicial discretion as not to honour the promises made by the Minister without Portfolio on Second Reading. I want to look again at the effect of importing the Wiley balance into clause 7.

It was the considered opinion of the JCHR that the Bill should be amended to ensure that a CMP is only permitted as a last resort; we really are talking about last resorts here. That amendment, in the names of Lord Pannick, Lord Lester, Baroness Berridge and Lord Beecham, was not resisted by the Government. I appreciate that that was following large defeats.

The Government seem to be saying many of the right things on last resort and natural justice, but their rhetoric does not match the terms of the Bill, particularly in relation to this clause, which leaves no leeway. The Government have stated on a number of occasions that the Bill is intended as a back-stop only where cases would otherwise fail.

The Government’s position on last resort, narrowing the cases in question, was clarified in their July 2012 response to the House of Lords Select Committee on the Constitution. They said:

“In the limited number of cases where there is highly relevant material which it would be damaging to national security to hear in open court, the choice is not between open justice or closed justice. It is a choice between justice through a closed material procedure or no justice at all.”

Again, on last resort, the Government said:

“The first test is upon application by the Secretary of State to the judge for a CMP based on the existence of material, the disclosure of which would damage the interests of national security. The only circumstance in which the judge can grant this application is where disclosure into open session of material relevant to the case would damage those interests.”

Lord Wallace of Tankerness said on Report:

“When the Secretary of State makes an application whereby a CMP might be used, the judge needs to be satisfied of two things: first, that there is material that a party would normally be required to disclose; and, secondly and significantly, that disclosure of that material would damage national security. That is not a fig leaf, as some have described it. The judge will have the final say about whether or not those conditions are satisfied. The Secretary of State has to demonstrate that genuine damage to national security, not embarrassment, would be caused by the material being disclosed publicly; and if the judge disagrees with that assessment, he could refuse to order a CMP. Equally, if he considered that the material was not relevant to the facts of the case and the Secretary of State was therefore seeking a CMP where one was not necessary to protect material that was relevant to the case, he could refuse to order one on that basis, too. This is a significant role for the judge.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1855.]

The same was said by the Minister without Portfolio in the latest response last week:

“The Government has never claimed that Closed Material Procedures are ideal, but in very difficult and exceptional circumstances where national security is at stake, they offer a means to deliver justice where otherwise there would be none.”

The Minister himself said:

“In the vast majority of civil claims, CMPs have no part to play whatsoever. However, in the tiny number of cases that hinge on sensitive national security material, it is inevitable that without a CMP the case cannot be heard. Our intention is that CMPs should be used only in the small number of cases where they are in the interests of the fair and effective administration of justice in the proceedings.”

He also said that

“the test for entering a CMP relates only to information that would damage national security if released.”—[Official Report, Justice and Security Public Bill Committee, 31 January 2013; c. 111-127.]

Finally, in last week’s Government document in response to the JCHR recommendation that CMP should be a last resort only when the court is satisfied that a fair determination of the issues in the proceedings is not possible by other means, the Government said:

“The Government recognises the strength of feeling regarding the wish to ensure that CMPs in civil cases are a last resort. It is our position that in the vast majority of civil claims CMPs have no part to play whatsoever. In the tiny number of cases that hinge on sensitive national security material it is, however, inevitable that without a CMP the case cannot be heard. Our intention in legislating is that CMPs would only be used in the small number of cases where they are necessary in the interests of the fair and effective administration of justice in the proceedings…We are committed to ensuring CMPs are only available in those cases where they are necessary. The introduction of a much clearer discretion for the judge that CMPs should only be used when they are in the interests of the fair and effective administration of justice in the proceedings will go a long way towards achieving that aim.”

It might be reasonable to summarise from those statements, made throughout the Bill’s consideration, that its intention is to provide for CMPs as a last resort only when realising that other options threaten national security. After the acceptance of the Government’s amendment 55, would the Bill limit CMPs to only a tiny number of cases, when the risk to national security is such that there are no alternatives?

Unfortunately, the answer is, “No, it would not.” That is not just because the Government rejected the Wiley balance test for entering the procedure nor was it only because they would not adopt the last resort test in relation to clause 6. Both tests were endorsed by the law and were established by an important role limiting the use of procedure to “necessary only” issues.

I have one further quote for the Minister.

James Gray (Conservative, North Wiltshire)

Order. “Erskine May” enjoins us to use as few quotes as we possibly can. The hon. Gentleman has used a fairly extensive selection of them, so it might be sensible if he moved towards winding up his speech and saying whether he wished to press the amendment to a Division, rather than quoting further.

Andrew Slaughter (Labour, Hammersmith)

I will, Mr Gray. The purpose of those short quotes was to establish what the Government have said consistently over time and with which we have relatively little to disagree. However, they have now fettered the courts’ hands in relation to clause 6. We are now asking for there not to be a similar—in fact, more onerous—process in relation to fettering under clause 7.

There are many ways to examine material in the CMP, and they will be known to the Minister. They will not just be confidentiality agreements. They might be holding part of the hearing in camera; requiring an express undertaking in confidentiality from those to whom documents are disclosed; restricting the number of copies of a document that could be taken for the circumstances in which documents could be inspected; or requiring the unique numbering of any copy of the sensitive document. Those are matters to which both the noble Lord Pannick and the independent reviewer of terrorism turned their minds.

We will shortly discuss gisting, a principal such measure. Having a review process within the CMP opens the door to all the alternative routes whereby the Government, while maintaining the CMP, can go outside the CMP when it is possible to do so.

If the quotations that I have cited truly reflect the Government’s view that they wish to restrict the CMPs as far as possible because they do not see them as ideal or fair, notwithstanding their approach to clause 6, they have the opportunity by accepting the amendment to fulfil that obligation under clause 7. That would be both a token of good faith by the Government that they really do intend that CMPs are used only when necessary and it would deal effectively with the points that have been made about reputational damage, because the Government will say at all stages that they are doing everything they can to put matters into the open or to use alternatives to the unfair processes of CMPs.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I want to confirm to the hon. Gentleman that, to take on board the comment of his right hon. Friend the Member for Torfaen, national security is the only thing at stake. CMPs can take place only within relevant civil proceedings—where there is the potential for disclosure of sensitive material. As the hon. Gentleman will know from our previous debate, our focus with regard to that is very heavily on national security. That is part of the process. Although we may disagree about the import of this measure, I hope he will at least acknowledge that it is tied in that way, and that there has been a change in that regard since the Bill started off in the House of Lords.

Andrew Slaughter (Labour, Hammersmith)

Absolutely. I am responding to what the hon. Member for Canterbury said this morning. He asked why the Opposition—he could have asked the same question about the Liberal Democrats—were talking about the law and then talking about limitations.

I cannot speak for the Liberal Democrats after our debate this morning, but I can speak for the Opposition: having accepted the principle of CMPs, but only in a very narrow and confined space, of course we are going to spend our time defining how narrow that space should be. That does not apply only to CMPs being actioned in the first place; it applies to how they are dealt with.

For the life of me, I cannot see why the Minister is so resistant to having a process of review—not the one in his new clause 5, which is both otiose and clumsy, but a proper process of review that the courts understand and follow through.

When my right hon. Friend the Member for Torfaen rose to question the hon. Member for Cambridge a moment ago, I thought he was going to make again the point he made before. I believe that the point at issue was whether the Opposition have been consistent on this issue. Yes, we have, and Members can follow what we have said throughout this process. I would point out two inconsistencies—first, between what the Government say and what they do, and secondly between the two parties in the Government. How are we supposed to deal with the messages coming from the Government in that way?

I appreciate that we will have to wait until, perhaps, Report and Third Reading to see whether the intention of the Liberal Democrats is carried through in a forum where they might actually win a vote, but that is an issue for another day. For the present, I ask the Minister to look very carefully at amendment 71 and to accede to it, as at least a nod towards the process that the Government claim they wish to uphold.

Julian Huppert (Liberal Democrat, Cambridge)

I beg to move amendment 1, in clause 7, page 6, line 2, leave out ‘consider requiring’ and insert ‘require’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss the following:

Amendment 2, in clause 7, page 6, line 4, at end insert

‘sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and special advocates.’.

Amendment 3, in clause 7, page 6, line 5, after ‘ensure’, insert

‘so far as it is possible to do so’.

Julian Huppert (Liberal Democrat, Cambridge)

It is a pleasure to get on to these amendments, which were tabled some time before Christmas. I am sure that the Government have had considerable time to consider them; we believe in trying to provide information about what we are trying to do. The amendments deal entirely with gisting.

We have now reached the stage where we are in a CMP, and the question is, how much information should one party to the proceedings be given? The amendments are all taken from the report by the Joint Committee on Human Rights and are all items that were not voted on in the Lords. So many peers had gone home to have their dinner, or whatever it is they do in the other place—as discussed earlier—that the amendments were not put to a vote. Essentially, they arise from the AF (No. 3) disclosure obligation, known as the gisting obligation, which is to disclose to the opposing party in litigation sufficient material to enable them to give effective instruction to the special advocate who represents their interests in closed material proceedings. For the entire process of CMP to work and to have any chance of being fair, it is important that some amount of information is given to the other party—so that they can know what it is that they do not know about and can give some indication as to whether there is some rebuttal, response or way of dealing with it. It has been held that that is the case.

The gisting obligation is agreed with generally. The former reviewer of terrorism legislation, Lord Carlile of Berriew, with whom I do not always agree on every single issue, expressly agreed in oral evidence that the disclosure obligation should apply to all proceedings and that there was no respectable argument against it in any circumstance. The noble Lord generally believes that any argument that disagrees with him is not respectable, but on this occasion I agree with him. I agree, further, with the current independent reviewer, who also talked about its great importance:

“I can see the great attractions from a policy point of view of requiring gisting in all types of case.”

The JCHR, which was looking at all that, agreed with the recommendation, if there is to be a power to hold CMP. That is where we are in our debate. There should be a statutory requirement in all cases to provide the excluded party with the gist of the closed material, sufficient to enable them to give effective instructions to the special advocate. Without the obligation, there are issues about unfairness and whether someone can realistically provide the information for the special advocate to do the correct testing within a CMP process.

Those are the arguments. The current draft of the Bill does not have the requirement, merely permission: the courts may require the gisting. Amendment 1, therefore, would change that so that the court has to require gisting. At the simplest level, it is stating that there should be no circumstance in which absolutely no information about the CMP is provided. I had an interesting conversation with the Minister without Portfolio, who is in charge of the Bill, looking for cases where, in the interests of national security, no information whatever could be given. We were unable to come up with any case about which nothing could be said, bearing in mind, of course, that any party knows a CMP is in process—they would know that there was some intelligence information—and it is hard to see how not a single word could be said to the party. That is the intent of the lead amendment.

The second amendment is a step further, the next step down the chain, which is to say that not only must there be some information but, as required by the Supreme Court in AF (No. 3), it has to be enough so that effective instruction can be given to the special advocate. The provision would not involve the special advocate divulging any national security information—the process has been tried and tested in other cases—but it would ensure that the special advocate can get effective instruction. If the special advocates cannot get effective instruction, they will not be able to do their job—I remind right hon. and hon. Members that the special advocates have called for this provision as well.

Meg Hillier (Labour, Hackney South and Shoreditch)

The hon. Gentleman makes a fair point if we were talking about the issue in the normal course of the law. In this case, however, how can we define what information could be given to the defendant to instruct the special advocate that would not also release security information? The difficulty of defining that is a huge challenge. The hon. Gentleman is, as ever, erudite in his ambition, but we are dealing with the practical reality of the law in security-sensitive situations. Can he answer that point?

Julian Huppert (Liberal Democrat, Cambridge)

Absolutely. That is exactly what I addressed. My position is supported explicitly by the special advocates and the current and former reviewers of terrorism legislation, who all work specifically on such cases, and was upheld by the judgment in AF (No. 3), which dealt with a similar area. It is not something that I and my hon. Friend the Member for Edinburgh West have come up with. I would not be in a position to say exactly how that test could be interpreted in all cases, but it is an established legal principle as the standard disclosure obligation that has been determined. I am sure that the hon. Lady could ask the hon. Member for Hammersmith to read out all the exact quotes that led to it.

James Gray (Conservative, North Wiltshire)

You would be discouraged if you did.

Julian Huppert (Liberal Democrat, Cambridge)

I would be discouraged.

There is already a clear established concept in law about what material would be needed for those effective instructions. I cannot dictate it, any more than I can with any of the other tests, such as the balancing test. Wiley balancing is an established principle that I assume the hon. Lady supports, but I could not say exactly how we would do it in every case.

Meg Hillier (Labour, Hackney South and Shoreditch)

I thank the hon. Gentleman for giving away again so generously. The established principle in law is not something that any Committee member would disagree with, but we are dealing with an extraordinary and, as my right hon. Friend the Member for Torfaen said, imperfect situation. We have to deal with an imperfect world; in an ideal world, we would not introduce CMPs, but we have to do so, because of the situation that we face in the real world. How do the principle and the reality match up? The hon. Gentleman cannot dodge that point, if he is pushing the amendments. My question is: what is his definition?

Julian Huppert (Liberal Democrat, Cambridge)

I am not sure that I can add to what I have already said. The principle was established in terrorism cases for control order processes. These cases are not exactly the same as control orders ones, but they are very similar. I do not know exactly which items may be covered—I am not a lawyer or a special advocate—but I know that special advocates believe that it is possible and, given their expertise in such cases, have made it clear that they think it should happen.

I also know that both the current and the former independent reviewers of terrorism legislation—they have looked at these precise issues, and know far more about them than I do now or, I suspect, ever will—believe that it is essential to have gisting and that the disclosure obligation should apply to all proceedings. That was determined in the AF (No. 3) case, in which senior judges decided that that was the appropriate terminology to use, as it has been, in other cases.

Julian Lewis (Conservative, New Forest East)

I have no specialist knowledge of this area, but I incline towards the view that the judge should have some discretion in such matters. For example, let us consider a case in which secret intelligence was available that would negate the claim made by someone bringing this sort of proceeding. The very minimum that the gist would have to contain is whether the information had been made available through technical interception or human intelligence. I do not see how much less than that could be given to someone under those circumstances, and if that were given, it might well be damaging from the point of view of the future collection of information by technical means or through the exposure of a human source to sanctions.

Julian Huppert (Liberal Democrat, Cambridge)

We seem to be slightly Julian-heavy in this Committee—overloaded, or however we might describe it.

David Evennett (Conservative, Bexleyheath and Crayford)

All good quality.

Julian Huppert (Liberal Democrat, Cambridge)

Thank you very much. It is always good to hear such praise from the Government Whip after how I have voted.

That is precisely why there are three amendments with different levels: the Committee might accept only amendment 1, it could accept amendments 1 and 2 or it could accept amendments 1, 2 and 3, so there is space there. Amendment 1 would require only some gisting. I would have hoped that the hon. Member for New Forest East, given his concerns, might have gone as far as amendment 1. Bear in mind that the party will have to know that there is a CMP. If only amendment 1 were agreed, the gist in his example might be that we have intelligence that someone was in fact in such a place, and we would not necessarily have to say what sort of gist it was. If amendment 2 were also agreed, more information would have to be provided, according to the existing AF (No. 3) balancing, so there would be a separate question about how far we could go.

James Gray (Conservative, North Wiltshire)

Order. Will the hon. Gentleman address the Committee?

Julian Huppert (Liberal Democrat, Cambridge)

I will, Mr Gray. Amendment 3 would take us a step further in how we push that balance. I agree with the special advocates and the people we discussed earlier that one should take all three of them, but even taking only amendment 1 or only amendments 1 and 2 would provide people with a better amount of information. I hope that that addresses the concerns that have been raised.

What we are debating is simply how to ensure that the process is fair for those involved. There is the opportunity for a party to say, “An error has been made. There has been a recording of information, but actually I was not there. I had left that room.” They might be able to get some level of information. They would be able to give that instruction to the special advocate.

I hope that the Committee will accept the case that was put by the Joint Committee on Human Rights, which can be read in far greater detail, and agree with the expert opinion that we have from special advocates, terrorism reviewers and the most senior judges, that this is the right way to go. This sort of gisting ensures that one can protect national security but still provide a fair trial, with the ability for people to know a little bit of what is going on behind the closed veil.

Andrew Slaughter (Labour, Hammersmith)

These are interesting amendments, and we might even support some of them. I will start by saying a little on what the clause says about gisting, as it is relevant to our set of amendments. The court is invited to go through an interesting process in clause 7(1)(d):

“if permission is given by the court not to disclose material, it must consider requiring the relevant person to provide a summary of the material to every other party to the proceedings (and every other party’s legal representative)”.

That is where the hon. Member for Cambridge wishes to change “consider requiring” to “require” and to insert the rubric that defines what the evidence needs to be at that point, that is

“sufficient to enable the party to whom the summary is provided to give effective instructions on the undisclosed material to their legal representatives and special advocates”.

I do not think I have a great deal of difficulty with that, because in subsection (1)(e) we have the balancing proposal

“that the court is required to ensure that such a summary does not contain material the disclosure of which would be damaging to the interests of national security”.

I appreciate it is not the fault of the hon. Member for Cambridge; if anything, it is the fault of the Joint Committee on Human Rights. However, the wording seems vague at that point. It is not Wiley balancing; it is not a form of words that gives me the comfort of other amendments we have supported. We will look in a moment at what happens at the next stage. I think the hon. Gentleman is right that a gist should be required. I earlier described gisting as important but not central and that is probably right.

I am still puzzled why the Liberal Democrats put down the amendments they did and not the Wiley balancing and last resort and what I call the central amendment. However, they have put down this proposal. It is an important way to overcome the inherent unfairness of one of the parties to an action not knowing the case against them. In circumstances, with a CMP, where it is not possible for them to be shown the evidence, at least they can be shown the gist. Therefore, it does seem reasonable. That is something that does happen. It is also sufficient and so on, as the hon. Gentleman set out.

If we are not to go back on the basic principle that I think we all agree on, that national security must always be safeguarded, we must be clear. I am not sure that the words in this provision or of the Joint Committee on Human Rights are clear in that respect. What happens if the gist is ordered? Subsection (2) says:

“Rules of court relating to section 6 proceedings must secure that provision to the effect mentioned in subsection (3) applies in the cases where a relevant person—

(a) does not receive the permission of the court to withhold material, but elects not to disclose it, or

(b) is required to provide another party to the proceedings with a summary of material that is withheld, but elects not to provide the summary.”

It goes on to say that the court must be authorised to order the party not to rely on that material. So, at the end of the road, there will always be that assurance that material that could be damaging to national security, be it in the gist or not, will not be revealed in that way.

I am not going to trespass on the Chair’s patience by quoting at length, but I would recommend that Members read the debate in the other place on these matters, because it was quite full and clear in relation to the proposals. I would also refer Members particularly to the evidence given by the special advocates and Mr Ben Jaffey, who have real life experience of this and show the way that matters can work. I hope to get away with one quote, because it is important. Lord Phillips of Worth Matravers said:

“I sat in a judicial capacity on a number of appeals dealing with closed material, including Al-Rawi. Closed material is anathema to any court, and the Supreme Court always managed to deal with issues relating to closed material without looking at the material itself. I am, however, reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases where the Government would otherwise have no alternative but to submit to a civil claim for damages because to defend it would necessarily involve putting into the public domain material that would cause disproportionate harm to national security. It is for that reason that I support the batch of amendments tabled by the noble Lord, Lord Pannick, and other noble Lords in relation to Clauses 6 and 7.

I would expect the Government and those supporting Clauses 6 and 7 to welcome these amendments.”

He went on to explain:

“The Bill as it stands makes no provision for the application of a test of proportionality. The test is simply: would disclosure be damaging to the interests of national security? If the answer is yes, the court is mandated to accede to the application that the material in question be not disclosed. Clause 7 then leaves it in the discretion of the court as to the extent to which, if at all, the closed material can be deployed in support of the Government’s case.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1830.]

I am not going to read on, but I recommend that speech.

In other words, if we take the Government’s case and look at the way that they say CMPs should be dealt with, proportionality must be built into the system. Gisting is one of the ways that that can be done. I would therefore be interested to know whether the Government resistance to these amendments is coming from another part of the Government. If so, what are the reasons for that? The Government cannot object on principle or because of the substantial redrafting needed for a new form of words and tests; gisting is gisting in this context. It is in the Bill, and my amendments would simply make it a little tighter, so if these amendments are pressed to a vote, I am content that we will support 1 and 2. I do not think that the Opposition will support amendment 3 unless the hon. Member for Cambridge can persuade me that it means something concrete and clear that I can put my name to.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The amendments relate to the second stage of the process that we have been considering in respect of clause 7. Part of that process will involve ensuring that the party excluded from closed proceedings has as much information as possible without damaging national security. I will go through the hon. Gentleman’s amendments to explain why it may be worth while for him to consider why they would not quite work in the way that he thinks and why, in our judgment, they are problematic. I will be as clear as possible.

Amendment 1 would require the judge to require a summary of every piece of sensitive material—everything—whether or not it is actually relied upon. Amendment 2 provides for the standard of disclosure required by the AF (No. 3) principle to apply in every case. In AF (No. 3), the court found that for article 6 to be satisfied, a person must know enough about the closed case to give instructions to the special advocate representing their interests.

I recognise that the amendments are genuinely intended to improve the process. At first glance, they might look appealing. I hope I can set out several important reasons why they are neither desirable nor practical in some circumstances. First, they would remove the judge’s ability to manage the case in a way that is fair and effective. Secondly, they would cause massive and unnecessary delays in important cases. Thirdly, they would introduce inconsistency with other CMP contexts. Fourthly, they ignore relevant case law, including a recent judgment of the Supreme Court.

If a court gives permission for material not to be disclosed, it must be agreed that it is damaging to national security. Where it is possible to give gists and summaries of national security-sensitive material without causing damage, they will be supplied. There is no doubt that a court would require a non-damaging summary where one is necessary in the interests of justice. Quite often, however, it may simply not be possible to supply a gist without causing the damage to national security that the consideration of sensitive material in the closed part of proceedings seeks to prevent. The very existence of a document may, in itself, be sensitive.

Julian Huppert (Liberal Democrat, Cambridge)

Could the Minister give examples of cases where no gist could be provided, but where the fact of the CMP happening would not give the game away?

James Brokenshire (Conservative, Old Bexley and Sidcup)

I suppose the point we come to is about the operation of clause 7 itself, and whether national security will be impacted. The hon. Gentleman is highlighting that some sensitive evidence will trigger the national security requirements and the points covered by clause 7(2), but is so sensitive, reflecting the drafting, that it cannot be disclosed. A judge would determine that a fair trial could not be provided as a consequence of that. In other words, it would not trigger the AF (No. 3) requirements or the article 6 requirements.

The point about AF (No. 3) and subsequent case law relating to CMPs is that it has been upheld by courts that a gist may not apply in every single case. I will explain that further. The amendments may mean that a gist or a summary has to be provided for all material that falls within the sensitive category, even if it is not inculpatory or exculpatory—if it is just disclosed material. The amendments would require a summary of each item of material, and would take the discretion away from the judge to be able to say, “Actually, as a judge, I can see that information is not relevant.” The amendments would impose an additional burden on the court process that is not there if judges can assess what is appropriate for the best handling of the case.

I will move on. No doubt the hon. Gentleman will wish to come back at me in further interventions. I recognise his point about justice, but I would argue that the provisions on established case law that have been upheld in relation to article 6 show that CMPs can be operated as currently constructed, without the addition of the wording that he seeks. I can draw an immediate parallel to legislation that has passed through this House. The hon. Member for Kingston upon Hull North will remember the days of joy that we spent in Committee debating the Terrorism Prevention and Investigation Measures Act 2011. We had a very good, well-informed, debate from both sides of the Committee. The hon. Lady was not in her current position at that point. I think she became involved later on.

The provisions in this Bill are substantially the same as those in schedule 4(4) of the 2011 Act. The measures we have in this Bill are more tightly framed, inasmuch as they are focused on national security rather than the public interest. So what we have in this Bill is actually narrower than what is contained within the TPIMS Act.

Julian Huppert (Liberal Democrat, Cambridge)

I remember with strong emotions the TPIMS Act. The Minister may recall that I tabled a series of amendments there to try to avoid very much the same process as this. It did not get support from either side of the House. At least there is consistency and I may attract more support this time.

James Brokenshire (Conservative, Old Bexley and Sidcup)

We will see, but the point I make to the hon. Gentleman is that there is a need for consistency as part of the procedures that operate in relation to closed material proceedings. I do not think he is suggesting—maybe he is suggesting; I do not know—that in some way information is not being disclosed, in a way that would not allow a fair trial to take place. Indeed, the court has upheld the importance of a fair trial. If I may develop that further, I was highlighting the fact that the very existence of a document may be sensitive and it may even be clear from the information that it could only have come from one source, with any gist or summary thereby putting the life or safety of that source at risk. Yet even in those circumstances, the court can direct a summary to be provided—even if it is damaging to national security—if one is necessary to satisfy the article 6 right to a fair trial.

Article 6 requires gisting of the form required in the AF (No.3) case. Clause 11(2)(c) means that the court must order it. So there are already provisions that require the judge to consider what fairness requires in the case. When deciding on the individual treatment of each piece of national security-sensitive evidence inside a closed material procedure, the judge has the flexibility and power to refuse non-disclosure; to commit non-disclosure only of parts of documents—in other words redaction of those documents; to require summaries; to require a party to take action for refusal to disclose or summarise, for example to direct them not to rely on it; or to make concessions. The Joint Committee on Human Rights and many others have talked about the importance of judicial discretion in deciding whether a CMP should go ahead. The judge’s decision on how he or she approaches material to ensure fairness and effective determination of the case is a fundamental aspect of this.

There have been criticisms that the judge’s hands were being tied in the trigger for a CMP yet, if I understand correctly, that is exactly what these amendments would do when it comes to considering the disclosure issues themselves, saying that the judge has to treat it in a particular way. Another aspect of the judge’s discretion concerns the practical and effective management of the case. These amendments would potentially require a summary for each of hundreds of thousands of documents, even when the judge considers it neither necessary for fairness nor workable in practice.

The practical consequences mean that the disclosure phase might be considerably prolonged, inevitably deferring the start of the substantive trial, possibly for a number of years, unnecessarily. There is a practical point about the hon. Gentleman’s amendment 1, which, I am advised, would lead to that very approach having to be taken if it were upheld. These amendments also ignore the judgment of the Supreme Court in Tariq, which held in a security vetting case in the employment tribunal that a gist was not required to be provided and that article 6 does not provide for a uniform gisting requirement in all circumstances. Lord Mance said, at paragraph 27 of the judgment in the case, that

“the balancing exercise called for in para 217 of the European Court’s judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present, where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself”.

So all I would say to the hon. Gentleman is that there is case law that has been established to guide the judges on their application and interpretation of what is appropriate in the context of this phase of disclosure. Lord Hope went on to say at paragraph 72 of his remarks:

“The context will always be crucial to a resolution of questions as to where and how this balance is to be struck”.

The Supreme Court found that what fairness requires will inevitably vary from case to case, and in my submission judges are clearly best placed to decide what it requires on a case-by-case basis. We do not believe that Parliament should seek to apply an absolute requirement that AF (No. 3)—gisting—apply in all cases at this time and, if the law on disclosure changes, nothing in the Bill will prevent the courts from applying any new standards, if case law or other practice develops.

Imposing such an obligation with no regard to the judge’s view on what is required for fairness, would also introduce an inconsistency with existing legislation for most CMPs, where gisting is not set down as a requirement. There is a clear difference in nature between executive action-related litigation challenging interference with the individual’s liberty or freedom of movement and civil claims again the state, in which the individuals themselves make the allegations.

It is worth making it clear that in the context of the Bill, and of civil damages cases specifically, individual claimants are making allegations against the state and are therefore aware of the details of the allegations. Mr Justice Ouseley made some relevant remarks in his recent judgment in the AHK case, which is a judicial review of a naturalisation decision. He said:

“I do not think, and I am not alone in this among the judges who hear these types of cases, that the views of the Special Advocates…are a true reflection of the effectiveness they bring. Nor do they properly reflect the ability of an individual to explain what he has been doing and saying…even without specific details of allegations against him.”

He made those remarks in a case in which the Home Secretary had refused someone citizenship on the basis of sensitive material. The cases that the provisions we are discussing relate to are different. They are civil proceedings, including civil damage cases, in which an individual makes detailed allegations about the conduct of the state.

Amendment 3 instructs the court to ensure that any summaries do not damage the interests of national security only so far as it is possible to do so, and that is a risk that the Government cannot take. I note the comments made by the hon. Member for Hammersmith about his reticence regarding the amendment. We cannot say to the sources who are risking their lives for us, “We will protect your identity, and therefore your life and safety, as far as it is possible to do so.” We cannot say to our international partners, “We will protect your information as far as it is possible to do so.” We need to be clear about that.

Andrew Slaughter (Labour, Hammersmith)

I have listened carefully to the Minister, but I want to go back to when he addressed the gist itself. Lord Phillips’s point is that passing amendments such as these will

“significantly increase the chances that the provisions in relation to closed material are held to be compatible with Article 6 by the Strasbourg Court. That court has made it plain that it considered that gisting was an essential feature of a closed material procedure in the context of control orders, and the court is likely to take the same view in relation to civil litigation…It seems to me likely that the Strasbourg Court will require…that a gist of the closed material which is sufficiently specific to enable the other party to meet the case made against him has been provided to him, and that closed material”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1830-1831.]

James Gray (Conservative, North Wiltshire)

Order. Quotations are not supposed to be used in a speech, and they are most certainly not to be used in interventions. This is a very long intervention. I call the Minister.

James Brokenshire (Conservative, Old Bexley and Sidcup)

In the case of Tariq, the court took a different view. It said that there was not the requirement to have a uniform approach to AF (No. 3). There is related case law and jurisprudence to which the court can point in determining and considering what is and is not appropriate. The hon. Gentleman says that the provision we have made in clause 11(2)(c) in respect of article 6 of the European convention on human rights does not, in his judgment, add anything, but I can probably say that if it were not there he would no doubt make the point that the legislation was thereby in some way defective.

There is the requirement under article 6 for a fair trial to be held, and the court must have regard to that. Even though, as I have already said, the court might look to the clause 7 provisions and decide that there is something that would be damaging to the interests of national security, article 6 would mean that whatever that was would still need to be disclosed. I say to the hon. Gentleman that there is no level playing field. The AF (No. 3) case highlighted the requirement for gisting in certain circumstances of that control order case, but the courts have not said that that is a uniform standard that is applied. For the various reasons that I have explained from Tariq and the case law that has been developed, it should be for the courts to determine how best they manage this phase of the disclosure of information. In our judgment, that is the most appropriate way to deal with this.

I genuinely respect the point that the hon. Member for Cambridge is making, but I say to him calmly that this is about the practicalities, the case law and the consistency. I encourage him to reflect further on that and urge him to withdraw his amendment. Obviously, I am happy to discuss his points with him. None the less, the case law sets out the provisions quite clearly, and in our judgment, we should let the judges decide. That is the point that has been highlighted on a number of occasions in this Committee. I would not normally quote Lord Owen of all people, but he did make some comments on gisting in the other place. He said:

“In this debate those who have been justifying the amendments have often said that it is to avoid restricting the court and to give more power to the court's judgments. This amendment would go in the opposite direction.”—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1833.]

Given that sense of consistency and what the court has said in this regard, I urge the hon. Gentleman to withdraw his amendment.

Julian Huppert (Liberal Democrat, Cambridge)

I very much enjoyed hearing those two contributions, and it is interesting to see where we are. The Government have had well over a month to consider their response and to come up with amendments to resolve the problems. I do not have many quotes to back my case, but in the case of the al-Rawi judgment, Lord Kerr said:

“To be truly valuable, evidence must be capable of withstanding challenge”.

I agree completely with that, and he goes further.

“Evidence which has been insulated from challenge may positively mislead”.

That is exactly the mischief that we need to avoid. I have heard what the Minister has said. He talked about the difference between cases involving liberty and civil cases such as the one we are discussing here, but then earlier today he accepted that habeas corpus would be included in this, so that clear distinction, on which the Minister was relying, does not quite work. He talked about protecting information as far as it is possible to do so. I hope that he and the Government will not be promising things that would be impossible to achieve, because that would be simply misleading.

The Minister talked about a uniform standard for closed material procedure. I agree, but I should like to see that uniform standard better than the current one; that is a fundamental point of disagreement. It is important to have this process. The Minister might be right that in pushing towards greater gisting, which is what we are trying to achieve, there might be a nicer way of achieving that—leaving out documents which is the saturation problem. I would accept it if the Government had come up with something that captured the intent of this, with some tweaks to it to deal with unusual cases. Despite the fact that the Government have had significantly over a month—they have had the whole Christmas break and the entirety of January—and despite conversations with the Minister without Portfolio who is in charge of the Bill, the Government have not made any progress. I respect what the Minister is saying, but I should like to test the position of the Committee. I want to see whether the Government can come up with something more productive by Report stage that takes us closer to where most of us would like to be.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 72, in clause 7, page 6, line 16, leave out ‘authorised’ and insert ‘required’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss amendment 73, in clause 7, page 6, line 21, leave out ‘or’ and insert ‘and’.

Andrew Slaughter (Labour, Hammersmith)

This continues the gisting theme. I will make a short speech. I will not push the amendments to the vote; I think that they will extend and wind up the point that we wish to make.

A relevant person, when confronted with a requirement to provide material or a summary containing information that they do not consider should be disclosed, can simply choose not to provide that material or summary. Clause 2 provides for protection against disclosure of such material or summary. The Bill makes it clear that the Government may elect not to disclose material that the court considers should be provided at clause 7(2)(a), and not to provide the summary at 7(2)(b). At no point is the judge empowered to overturn the Government’s decision to withhold materials or the summary, nor can he provide any such materials to the parties or others without the Government’s consent, nor is there a risk that the drafting of the court rules will allow that. Indeed, clause 10(1) states:

“A person making rules of court relating to section 6 proceedings must have regard to the need to secure that disclosures of information are not made where they would be damaging to the interests of national security.”

The effect of “electing not to provide” the summary or materials is set out in clause 7(3)(a) and (b), which provides that the judge may direct that the Government cannot rely on such points or that the Government should take concessions or steps as the court may specify. Such provisions relate to procedural fairness between the parties, and do not raise any risk of disclosure of information relating to national security. The amendment suggests an alteration to the court’s discretion to disregard materials that are withheld by Government.

The effect of “electing not to provide” the summary or materials is set out in clause 7(3)(a) and (b). Where the Government have chosen not to provide relevant materials or summaries, the clause authorises the judge to direct that the Government cannot rely on such points or to order that the Government make concessions as specified by the court.

Amendments 72 and 73 would strengthen the clauses. Where the Government have chosen not to provide relevant materials or summaries, the amended clause would require the judge to direct that the Government cannot rely on such points and the judge may also order that the Government make concessions as specified by the court. Briefly, the reason for the amendments is that they ensures a greater degree of procedural fairness at no cost to national security. The amended clause would remove one major objection to CMPs: unanswerable secret evidence, on the amended version, should not form the basis of the case against a party. Lord Pannick commented on that on Report in the other place—I will not quote him.

An anticipated impact of the amended clause would be to produce within the court and in those to whom the gisting obligation falls, an incentive to seek methods to provide the gist or to seek other ways to satisfy the court. There is no risk of disclosure of any materials or summaries that the Government deem they should not disclose, so the proposal poses no national security concerns and it is in line with the evidence on the conduct of PII.

In short, the intended effect of the amendments is to indicate the importance of the gisting requirement. Gisting provides an essential means by which a person can meaningfully instruct their counsel, and in so doing, provides some opportunity to moderate those aspects of the CMPs that are inimical to natural justice. The amendments seek to deter default from the gisting standards, by penalising default.

The amendments are consistent with the approach taken in PII. I anticipate that the Minister will disagree on the basis that he says that there should be full judicial discretion in relation to gisting. There is wide judicial discretion in gisting already in the clause, and I went through it when speaking on the previous group of amendments.

The amendments would strengthen the requirement, but would not in any way jeopardise matters of national security that may come into the public arena. They are therefore wholly consistent with the aim of ensuring that a level playing field is preserved where possible—that is, that the court is under instruction and encouragement to provide the gist wherever possible. The gist may not be provided in some cases still. In some cases, it will be ordered, but the Government, or Secretary of State as it will no doubt be, will decline to provide it. That is as far as we need to take the matter.

I will not press the amendment to a Division, but I would like the Government to say a little more than they did in response to the hon. Member for Cambridge about the importance of gisting in such cases, which is pretty fundamental for parties in the CMP process, who are hampered in all sorts of ways. Perhaps later this afternoon, we will look at how difficult the relationship between the excluded party and the special advocate can be. Gisting is a clear and simple way of ensuring procedural fairness and that a person knows the case against them. The amendments, like the previous group, are an attempt to ensure that that happens.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I will set out some important reasons about why the amendments are neither desirable nor practical. To continue our debate on the previous group of amendments, this group would remove the discretion available to the judge that is already available under existing CMP practice, as is reflected in the drafting of the clause.

The hon. Gentleman invited me to underline the importance of gisting, summaries and the disclosure of material. I recognise and understand that, as I hope is well understood from my previous contribution. The court has examined processes and procedures in detail to ensure that appropriate information is provided and that the necessary balance regarding the requirement to satisfy article 6 in respect of a fair trial is well understood and pursued by the courts.

Amendments 72 and 73, however, would impose a requirement on the judge to order concessions, such as ordering a party not to rely on material should a party elect not to disclose material when the court has not given permission or required a summary. The judge already has explicit authorisation in the Bill to do that. It may not be necessary to require such steps in every circumstance when a party chooses not to disclose material. One document alone might be sensitive, but there may be others relevant to the same issues that render such steps unnecessary, perhaps because they cover the same ground in a different way. We therefore believe that the amendments are unnecessary as they would actively remove judges’ discretion in deciding the fair and sensible management of the CMP.

The addition of the word “and” in amendment 73, if I read it correctly, would effectively mean that in such circumstances, the relevant person is not to rely on such points in that person’s case and is to make such concessions or to take other steps as the court may specify. I think the word “or” rather than “and” gives the judge the flexibility, if there is no disclosure, to say that concessions would have to be made, or that the relevant person may not rely on specific points. I do not think it is both—I think it is either/or—and that is part of giving the judge the appropriate discretion.

I fully recognise the hon. Gentleman’s points about the relevance of gisting and the import of the situation if the relevant party, for whatever reason, does not disclose the material in question. I also fully recognise his saying that the judge should have appropriate sanctions and measures to deal with that. We would argue that that is reflected in clause 7. We should have confidence that judges will make the right decisions in the interests of justice and according to their existing obligations to ensure an individual’s right to a fair trial under article 6.

I note that the hon. Gentleman said that this was a probing amendment, so I ask him to withdraw it.

Andrew Slaughter (Labour, Hammersmith)

I thought for a moment that the Minister was going to offer to accept amendment 72 if I withdrew amendment 73—we all live in hope.

I am grateful for the Minister’s comments. We are not going to agree any further on the basic issue. However, I did say that I was not going to press the amendment to a Division, so I will not, and I beg to ask leave to withdraw the amendment.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss new clause 9—Disclosure judge—

‘(1) The jurisdiction of the court in section 6 proceedings shall be exercised by a judge designated by the Lord Chief Justice for such purposes.

(2) A judge so designated shall be referred to as the “disclosure judge”.

(3) The disclosure judge shall not be the trial judge of the relevant civil proceedings.’.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I shall be brief, because I think that a number of the substantive issues relating to the clause have already been raised.

Obviously it is important that the clause ensures that information that should not be disclosed in the interests of national security is protected during a case. As we have heard, the clause allows for rules to be made setting out the applicable procedure with a number of integral procedural safeguards, which I think we have already touched on. I will therefore not develop further the broader arguments on the clause now.

New clause 9 would introduce a separate judge who would make decisions about closed material proceedings. This so-called disclosure judge would decide whether to make a declaration that a CMP may be used, as well as what we might characterise as the stage two questions of whether to grant an application that material may be heard in closed proceedings and, if it is, whether that material can be gisted. There would then be a separate judge for the trial. The rationale for this appears to be to avoid contamination of the judge’s mind in relation to material that he or she has seen but which is not shared with the parties. The example of that that is given concerns criminal trials on indictment without a jury in Northern Ireland, where PII applications are decided by a separate judge to the trial judge.

The Government carefully considered this proposal in the other place, so it will be useful for me to explain why neither the Government nor the other place were persuaded of its merits. First, the Government think it is better from the point of view of the administration of justice and judicial case management that the judge trying a civil case should be the one who determines whether a CMP should be allowed, and what material should be heard in closed proceedings. It is that judge who will have a direct interest in ensuring that he or she oversees a fair trial process.

In earlier debates, it was put to the Government that we have supplied insufficient room for judicial discretion. It seems to us that a single judge in charge of the entire process is more likely to guarantee judicial discretion than if the roles of disclosure and trial are compartmentalised. That point is even stronger in light of Government amendments to include a power to revoke the CMP at any stage in the case’s progression. This will be a more meaningful power when exercised by a single judge throughout the case progression. In addition, the whole point of the CMP provisions is to ensure that relevant, very sensitive evidence that would otherwise be excluded from proceedings under PII is considered by the judge. The issue is about allowing the judge to know the full facts, even in circumstances when they cannot be fully shared with the claimant. There will usually be no question of the judge’s mind being swayed by evidence of which no account ought to be taken. That is entirely different from the position in Northern Ireland, where the purpose of the disclosure judge is to insulate the trial judge from material that has not been shared with the accused and will not be taken into account when deciding guilt or innocence.

In any event, judges in civil cases are well accustomed to considering material for the purpose of making evidential and disclosure decisions. It is normal for judges at all levels to decide whether evidence is admissible and, if it is not, for them to put it out of their minds when reaching a judgment—interestingly, including when dealing with PII claims. That is the case in all existing contexts when CMPs are available by statute, such as in SIAC and TPIM proceedings. It is true even when the judge is also the decision maker on the facts, such as in civil courts when PII claims are made. Again, that is a question of information being excluded completely, so I can see that the hon. Member for Hammersmith could make a stronger argument in that context, but here we are saying that the information is included and is being considered.

A separate judge in civil cases would make the review of disclosure decisions as the case progresses cumbersome, not least because the disclosure judge would need to follow the progress of the whole case to understand the potential implications for the fairness of proceedings before he or she is able to rule on disclosure issues. It would cause delay and could be costly.

We have heard much—I am sure that we will continue to hear much—about the example of Northern Ireland. The practice there is to have a separate disclosure judge, but in a very specific context, because a criminal trial of serious terrorist offences proceeds in a climate with a real risk of paramilitary and community-based pressures on jurors. The reasons that made a two-judge system a valuable safeguard in that context were peculiar to that criminal jurisdiction and they do not apply to CMPs in civil cases.

The Government do not accept that two judges are necessary to ensure a fair civil trial under common law or, indeed, article 6 of the European convention on human rights. While I am sure that the hon. Gentleman will wish to press his case, I ask him to not to move the new clause, and I hope that the Committee will agree to clause 7.

Andrew Slaughter (Labour, Hammersmith)

Like the Minister, I shall not dwell on clause stand part because we have had a substantial debate on the clause; certainly, as far as the Opposition are concerned, amendment 71 was the key amendment we wanted to look at and we had a good debate on it. Nor, to put the Minister out of his fear, will I dwell greatly on new clause 9. I will keep the promise I made earlier: in relation to the remaining clauses, I will be as succinct as possible. That is partly because a number of the clauses had substantial debate in the other place and I do not think I can improve on that debate—I am certainly not going to quote from it, Mr Gray.

James Gray (Conservative, North Wiltshire)

I am most grateful.

Andrew Slaughter (Labour, Hammersmith)

So there it is. If I had made a long speech, I would not have dwelled greatly on Diplock courts in Northern Ireland—the Minister second-guessed me wrongly on that; it is more the general principle of having a separate judge or to decontaminate, if that is not too pejorative a word, the decision-making judge from materials and evidence that he may hear. Of course, it is not just the judge; in many cases it is the jury, and the criminal justice system on indictment in the Crown court exists in exactly that basis—whereby it is routine for the decision makers in a case to be excluded while evidence is heard. That is not the only example. In most High Court proceedings, interlocutory matters are dealt with by High Court masters and even where there are applications and preliminary matters are heard, it is likely that they will not be made to the trial judge.

Far from the Minister’s contention that the practice is unnecessary, unwieldy or uncommon, it is, on the contrary, very common. I would further argue that perhaps it is more needed in relation to closed material procedures where there is a need not just for procedural fairness, but for procedural fairness to be seen. It needs to be the case, and it will be of some comfort both to the excluded party and the general public, that the judge who makes those decisions, some of which will not be reported—never mind the argument and proceedings, but the judgment itself will not be reported—is as inured as possible from matters that may influence him in a way that they should not.

The process would not be difficult to institute. In the other place, there was a very interesting debate with strong views on both sides and, curiously, some of those who were lukewarm towards the idea thought that it might throw up more procedural difficulties than it would resolve. I respect that opinion, because there were eminent practitioners on both sides of the argument.

Like some later amendments, the proposal comes into the bracket of improving a process that we believe is dearly in need of improvement, and is already severely thwarted by the Government’s amendments made to the House of Lords’ work. It will not, however, change things materially and I accept that. On that basis, I beg to ask leave to withdraw the motion.

Clause 8 - Appointment of special advocate

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 74, in clause 8, page 6, line 28, leave out ‘may’ and insert ‘must’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss the following:

Amendment 70, in clause 8, page 6, line 40, at end insert—

‘(4A) Rules of court relating to any relevant civil proceedings in relation to which there is a declaration under section 6 proceedings must secure—

(a) that, where a party is excluded from such an application, his interests are represented by a special advocate appointed in advance of the court hearing such application and, if the application is granted, for the duration of the section 6 proceedings and related proceedings,

(b) that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent.’.

New clause 6—Access to special advocates: public interest immunity—

‘In any proceedings where a relevant person or the Secretary of State successfully claims public interest immunity over any material on the grounds that its disclosure would damage the interests of national security—

(a) any other party shall be entitled upon application to the court to have a special advocate appointed to inspect such material; and

(b) the special advocate shall be entitled to advise that party whether it would be in that party’s interests to apply for a declaration under this section.’.

Andrew Slaughter (Labour, Hammersmith)

The amendments deal with the appointment of the special advocate. New clause 6 is slightly different, and I was initially surprised to see it grouped here rather than under clause 6, but I can see why it was done.

The amendments are designed to provide the machinery whereby a party is given a statutory guarantee of a special advocate in CMP, who will be appointed in a timely fashion. We believe that is a minimum safeguard and that it should not be controversial.

By replacing “may” with “must”, amendment 74 would require an appropriate law officer to appoint a special advocate

“to represent the interests of a party in any section 6 proceedings from which the party (and any legal representative of the party) is excluded.”

As Lord Hodgson, a Conservative peer who nevertheless tabled several quite radical amendments, observed when speaking to the amendment in Committee in the other place,

“the reasons for that are self-evident and run parallel with the supporting arguments I have given for my natural justice amendment.”—[Official Report, House of Lords, 17 July 2012; Vol. 739, c. 145.]

Amendment 70 would secure that a special advocate must be appointed to represent the interests of a party before the hearing of an application, and that they should be afforded the opportunity to take instructions from that party. New clause 6 speaks for itself.

The amendments would provide the machinery to ensure that a citizen’s right to apply for a CMP is effective. If the Government successfully apply for PII over sensitive material, the judge cannot look at that material for the purposes of the trial, so it is entirely suppressed from consideration. As the legislation stands, the Government can cherry-pick. They can choose to apply for a CMP over material they consider helpful to their case and that they want the judge to see, but they can also apply for a PII to suppress from the trial judge material that they consider damaging to their case. That is totally unfair, and it is contrary to the Secretary of State’s repeated statements that the purpose of CMP is to ensure that the judge sees all the relevant material.

The amendments are designed to right that wrong. The special advocate would be entitled to inspect the suppressed PII material and decide whether it would help the excluded party’s case if it was put before the judge. If the special advocate thinks that it would help, he can advise the excluded party to apply for a CMP and he can pursue that application before the judge in closed proceedings. The Minister kept saying that a citizen would not have the evidence necessary to apply for a CMP over material held by the Government, which was why they were not given the right to make such an application under the Government amendments to clause 6. The amendments and the new clause would remove that restriction on the citizen by allowing the special advocate to inspect the suppressed material and make an informed application on the citizen’s behalf.

I anticipate that the Government may resist the amendments, but in doing so, as I have just indicated, they would be effectively resisting their own line of argument. When the Minister talked about equality of arms earlier, in the debate on amendments tabled by the hon. Member for Cambridge, he was clear that the distinction between the rights of the excluded party and of the Secretary of State were there for a purpose. The effect of new clause 6 would be to enable that to happen. Under the provisions in new clause 6, the special advocate would have a more proactive role in considering and advising the excluded party so that, again, the procedural unfairness and inequality of arms would be redressed.

I do not know whether the Minister is persuaded by that argument. I hope that at the very least, he is persuaded by the argument about amendment 74, on the replacement of “may” with “must”. I anticipate that again, his answer might be, “That is a matter for the court’s discretion, and the court will ensure that the special advocate is there when they are needed.” I am not sure that is good enough. The role of the special advocate in relation to the excluded party and their duty to the court is such that he or she must be there at all times and in a position to make those representations. I think the amendments would find favour with special advocates; they found favour in the debate among their lordships, although I do not believe that they were pushed to a vote. I will listen to what the Minister says, and decide what to do thereafter.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I hope I can set out why I think that we already have the necessary provisions in the Bill to allow special advocates to operate as effectively as possible while safeguarding national security, and thus why the hon. Gentleman’s amendments are not needed.

Amendment 74 and the first part of amendment 70 would provide that a special advocate must be appointed in any section 6 proceedings. However, the Bill already makes adequate provision. It provides that the appropriate law officer may appoint a special advocate to represent the interests of the excluded party. It is difficult for me to conceive of circumstances in which the appropriate law officer would not appoint a special advocate where statute makes provision for it.

The current position means that the special advocate does not have to be appointed when an individual actively does not wish to be represented and refuses to engage with them. It also gives Law Officers the ability to consider the number of special advocates required for a particular case or set of cases. The format in the Bill mirrors the wording in existing legislation that provides for CMPs, such as the Terrorism Prevention and Investigation Measures Act 2011 and the Special Immigration Appeals Commission Act 1997, which to my knowledge have not caused any difficulty. I am interested to know whether the hon. Gentleman can point to any examples in support of his arguments that those provisions have proven problematic in practice and that concern has arisen on those grounds.

I do not believe that we would wish to create inconsistencies in the provisions or to remove the useful role that the Law Officers play in ensuring that appropriate special advocate resources are allocated to each case. To ensure that related proceedings are covered, Government amendment 13 will amend clause 10(4) to make it clear that proceedings on or relating to an application for a declaration or decision of the court for a declaration are to be treated as section 6 proceedings for the purposes of clause 8, and so will be covered.

The second part of amendment 70 provides that rules of the court must ensure

“that the special advocate is afforded the opportunity to take instructions from the party whose interests he is appointed to represent”.

Where special advocates are appointed, provision is already made for them to take instructions from the party they represent, subject to necessary restrictions on communication on national security concerns. Clause 10 ensures that a person making rules of court relating to section 6 proceedings must have regard to the need to ensure that disclosures are not made when they would damage national security. The rules on closed material procedures in existing contexts, on which the rules for CMPs in the Bill would be based, make it clear exactly with whom the special advocate may and may not communicate regarding any matter connected with the proceedings.

The special advocate can communicate freely with the excluded party prior to the receipt of the closed material. The restrictions on communications take effect only when the special advocate takes receipt of the closed material, and even then there are no restrictions on the written instructions that the special advocate can receive from the excluded party. Communications from the special advocate to the representative individual will require permission from the court on notice to the Secretary of State.

Special advocates’ knowledge of communication in relation to the substance of the closed material is likely to create difficulties and may often be impossible. The purpose of the restrictions on communication is to ensure that national security is protected by avoiding inadvertent disclosure. In instances where agents or sources are involved, this can be about protecting the right to life.

Furthermore, in the civil damages cases covered by the Bill, the individual is making allegations against the Government, and so is aware of the detail of the allegations he is making. I underline for the hon. Gentleman that we are certainly looking at ways in which instructions can be assisted to aid communications in a practical sense, but I think that the special advocates themselves acknowledge that it is difficult for them to make decisions about the sensitivity of a national security issue when they may not necessarily be fully appraised of all of the relevant background.

New clause 6 seeks to allow a party to have a special advocate to inspect the material excluded by any successful PII application on national security grounds and advise that party whether it would be in their interests to apply for a CMP declaration. It seems to be aimed at dealing with cases where there is material excluded that would support the other party’s case or undermine the Secretary of State’s case. I will not re-rehearse or go back over the debates that we have already had, but we assert that that is unnecessary, because the court will have the discretion to decide whether a CMP is in the interests of justice in the proceedings and can make a declaration of its own motion, even if a party to the proceedings did not apply for one.

Our judgment is that the relevant provisions are unnecessary. As I have explained, we already have the necessary provisions in the Bill to allow special advocates to operate as effectively as possible while safeguarding national security in line with the provisions made for existing CMPs in statute. I therefore ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I have listened to what the Minister has said. He is a little complacent in relation to the appointment of the special advocate. What he proposes is a substantial potential extension of the CMP. He says, and I hope he is right, that the effect of the Bill, even as it is currently drafted, will apply in only a handful of cases a year. Certainly, the response to the Joint Committee report that was published last week indicates that there are about seven new civil cases a year. If the Minister is right about that, so be it.

The potential for extending CMPs into a substantial area of the civil law field could mean that over a period of time—none of us can foresee the future—there is substantial additional reliance on that. It would be sensible to define more closely the way in which the special advocates are appointed and work with both the court and the excluded party. That is what the amendments seek to do. They are probing amendments and I do not intend to divide the Committee. I beg to ask leave to withdraw the amendment.

Clause 10 - General provision about section 6 proceedings

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 75, in clause 10, page 7, line 16, leave out subsection (2) (b).

This is a simple and straightforward amendment, which would delete a paragraph stating that clause 6 may make provision

“enabling or requiring the proceedings to be determined without a hearing”.

Lord Hodgson of Astley Abbotts identified the concern behind the amendment in Committee in the House of Lords.

In summary, carried to extreme, clause 10 would deprive the special advocate and/or the claimant of any opportunity to engage to any extent in proceedings. The inclusion of the word “requiring” as an alternative to “enabling” is curious, and it is not clear whether the court is to choose between the two. If the rules of the court are to make provision requiring proceedings to be determined without a hearing, it is by no means clear that all such hearings would not be determined in secret.

There is a strong interest in transparency and open justice. Lord Hodgson challenged the Government to explain why the interests of transparency and open justice do not command the idea that some hearings, however formulaic or brief, would be appropriate. Of course there may be circumstances, even within CMPs, where brief formal administrative hearings could take place, but what informs most of the amendments we have tabled on the later clauses of part 2 is that, where there is any doubt in a CMP, the benefit should go to the fullest disclosure of debate. Certainly matters should be done not on paper but with opportunity for representations to be made. That is the effect of the amendment.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I hope we will be able to dispose of this amendment quickly, and I hope I will be able to provide some reassurance that there is no sinister intent behind the provision.

The intention of the Bill is that civil proceedings in which closed material proceedings are required will continue as regular civil proceedings, save only for the sensitive material elements that will be considered in closed session. The intention is emphatically not that the whole proceedings pass through a gateway to being closed proceedings in their entirety. However, it is important that the Bill does not interfere in any way with the court’s ability to exercise its normal case management powers, where decisions can be made on paper without a hearing, particularly where the parties agree to such a course of action.

The provision is well precedented in other CMP contexts, most recently in paragraph 2(2)(b) of schedule 4 to the Terrorism Prevention and Investigation Measures Act 2011. The rules made under that paragraph provide for certain matters to require a hearing, with exceptions where a hearing is not required, such as agreement of the parties or where the matter has already been determined. Requiring a hearing in such circumstances would waste court time and resources. Again, I emphasise that the Bill’s intention is for proceedings to continue as regular civil proceedings as far as possible. The purpose of CMPs is to ensure that all relevant material can be fully considered by the courts when coming to a judgment without damaging national security interests. It follows that the disclosure of sensitive material to the court and special advocate will be full and open precisely because it is not disclosed more widely.

I hope that gives some reassurance on the nature of what the Bill sets out to achieve in procedural terms and explains why the Government consider the amendment to be unnecessary, because it seems to reduce judicial discretion.

On that basis, I hope the hon. Gentleman will see fit to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 76, in clause 10, page 7, line 27, at end insert—

‘(2A) Rules of court relating to section 6 proceedings must make provision—

(a) requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made,

(b) providing for any person notified under paragraph (a) to intervene in the proceedings,

(c) providing for a stay or sist of relevant civil proceedings to enable anyone notified under paragraph (a) to consider whether to intervene in the proceedings,

(d) enabling any party to the proceedings or any intervener to apply to the court concerned for a determination of whether there continues to be justification for not giving full particulars of the reasons for decisions in the proceedings, and

(e) requiring the court concerned, on an application under paragraph (d), to publish such of the reasons for decision as the court determines can no longer be justifiably withheld.’.

James Gray (Conservative, North Wiltshire)

With this it will be convenient to discuss the following:

New clause 7—Open statements for closed judgements—

‘Closed judgements must be accompanied by an open statement from the court, which shall include—

(a) the reasons for the closed material procedure;

(b) any factors which would be particularly relevant in determining whether all or part of the closed judgement could be made open at a later date;

(c) the duration of open hearings and closed hearings;

(d) the number of witnesses heard in closed proceedings, and the nature of those witnesses;

(e) the length of a closed judgement;

(f) whether national security was an issue in the proceedings; and

(g) the date at which the closed status of the judgement should be reviewed, which must be no later than five years from the date of the judgement.’.

New clause 8—Recording of data relating to closed proceedings—

‘Rules of court relating to closed material proceedings under this Act, and applications for them, must make provision—

(a) ensuring that key data is centrally recorded for all proceedings, including:

(i) the duration of open and closed proceedings,

(ii) the number of witnesses heard in closed proceedings and the nature of those witnesses,

(iii) the length of a closed judgement,

(iv) whether the claimant, defendant and/or intervener applied for closed material proceedings, and

(v) whether the claimant, defendant and/or intervener contested the application for closed proceedings.

(b) ensuring that centrally recorded data is available to the independent person appointed by the Secretary of State to review the operation of the provisions of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006, and

(c) ensuring that centrally recorded data is subject to the provisions of the Freedom of Information Act 2000.’.

Andrew Slaughter (Labour, Hammersmith)

These are interesting amendments, so I will spend a little more time on them. They essentially address the ways in which, even where the CMP process is in train, one can ensure open justice. The media has a role in that. Such matters were discussed, in part at least, in the other place, but we could spend a little time on them.

I will read amendment 76, because each paragraph of it is quite pertinent:

“Rules of court relating to section 6 proceedings must make provision…requiring the court concerned to notify relevant representatives of the media of proceedings in which an application for a declaration under section 6 has been made”—

Julian Huppert (Liberal Democrat, Cambridge)

I suppose I do not entirely agree with the JCHR on that amendment. The question is about the distinction between media and, increasingly, we have citizen journalists—lots of people who are generally interested. I fail to see how we would interpret such a provision. Who counts as someone who might be interested? There are some incredibly serious bloggers who research some cases in great detail—when would they count and when not? I thought about tabling the amendment, but I decided that I did not agree with it.

Andrew Slaughter (Labour, Hammersmith)

I take what the hon. Gentleman said, that he does not agree with the amendment because the métier in which he moves—the twittering, blogging sphere—should be somehow excluded. I can reassure him, however, because I happen to know that the Ministry of Justice has an effective press office, otherwise we would not have the most trivial matters puffed up into front-page stories every week, such as the announcements on prison regimes on the front of The Mail on Sunday. He is splitting hairs. If his bloggers, twitterers and the like are as assiduous as he says that they are, I am sure that they will pick up matters from the wires, from the Press Association, from Ministry websites and so on and so forth. Even for me, to talk about how matters will be promulgated is getting into too much detail—we are talking about the principle, which is how to ensure the maximum sunlight, transparency and scrutiny on what is by definition a secret process.

James Gray (Conservative, North Wiltshire)

Before the hon. Gentleman continues, I think he was intending to read out the amendment. The Committee will probably agree that that is not necessary, because we have it on the amendment paper before us. Perhaps we might skip that bit.

Andrew Slaughter (Labour, Hammersmith)

I am conscious of the time, but I think I am keeping to my pledge, thus far.

James Gray (Conservative, North Wiltshire)

I hope you do not think that I am being tough; I am being tough.

Andrew Slaughter (Labour, Hammersmith)

There is a surprisingly amicable mood between the Whips, which we hope extends to the rest of the Committee.

My submission is that media are an important ingredient, however they may be defined, but the provision does not concern the media alone. It provides for any person notified to intervene in the proceedings; it provides for a stay, if necessary, to enable that to happen; and it requires a court to publish reasons for decisions.

How will it work in practice? The court would have to inform the media that an application for a CMP is under way; the rules of court would enable the media to intervene; and a stay would allow time to enable the intervening procedure to work. The second part of the amendment enables the media to apply to the court to determine whether there still exists a justification for not giving full particulars of the reasons for decisions in the proceedings. It also requires the court to provide any reasons for its decision that need not be withheld.

As discussed previously, there is a strong interest in open justice, and the Bill denies that in many fundamental ways. In amendment 76, we seek to provide for access to the proceedings for the media, on the basis that such access is an essential means to ensure scrutiny of the proceedings. Access to the proceedings by the media should also serve to reassure the public as to the fair conduct of the proceedings. Decisions of the court that need not be withheld, should not be.

I refer the Committee—again, without reading, obviously—to the evidence provided by Dr Lawrence McNamara. Not only has he sent to us independently, but his evidence has been submitted formally to the Committee and is therefore a matter of public record. Openness and transparency are his speciality and, indeed, I cannot but claim that some of the clauses in this part of the Bill are cribbed from him. They are none the worse for that—indeed, they are substantially better. I say that because in a previous sitting, I was criticised for alluding to briefings. I have been careful not to do so, although we have had some excellent ones from some of the non-governmental organisations in this matter. They are probably not actually in agreement with any of the parties here, but nevertheless they are well-informed sources.

If one picks out the bits that one wants, one can appear to be much more erudite than one is. So I am happy not to rely on them, though I will mention Liberty, Reprieve, Justice and Amnesty, who have all been quite assiduous in briefing throughout the process. Even those who find that they rarely have much in common with those organisations certainly value the expertise that they bring. I wanted to put that on record.

New clause 7 is again about pushing—if one wants to put it that way—at the bounds of closed judgments, by saying that they must be accompanied by an open statement from the court. Legal academics, including Dr McNamara, have called for these amendments for the following reasons There are problems with the collection of data on the use of proceedings, because there does not appear to be any systematically compiled evidence of the scale of use of secret evidence and the areas where it is currently used. There does not appear to be any publicly acceptable formal or informal recording of the total overall use of CMPs, or the total use within different contexts identified by the Government. Finally, there is no indication that such evidence exists in the public eye.

Access to such information as exists has proven problematic. This is because where records have been requested, the Executive are largely unable or unwilling to provide them. Even Parliament has had trouble with such information. Parliamentary questions, both in this House and the other place, have revealed that a paucity of information is available on the current use of CMPs. This issue was noted in particular by the House of Lords Constitution Committee in its recent report.

In May last year, Dr McNamara wrote an analysis of questions in the Commons and said:

“As it stands, the Bill sets a very, very low threshold of openness for judgments under Clauses 6 and 7. Moreover, there is presently no central recording of how often CMPs are used in any courts, nor any centrally recorded information about them”.

This new clause would provide essential data on reasons for CMPs, the availability of judgments, the duration and nature of hearings, the length and nature of judgments and the review periods for judgments. I suspect that all members of the Committee might agree that such information could usefully have produced essential data that could have better informed this debate. My referring to the seven cases and abstracting that from a paragraph of a Government report is one of the few facts about the number of CMPs that are currently issued. It is essential for Parliament, the media and academia that coherent and reliable data be produced in order that proceedings may be scrutinised, and that the efficacy or deleterious effect of CMPs can be forensically examined.

New clause 8 is similar, but goes some way further in relation to the information that would be provided about closed judgments. I simply say that I have given the reasons previously in relation to the other new clause and amendments. It must be the case that data is retained so that debate and scrutiny on the use of CMPs can be adequately informed. I remind the Committee about the real problems that the Government have encountered in making their case that CMPs were necessary, which was a challenge laid down by the Supreme Court in Al Rawi and repeated by the JCHR. That test might better have been met—to the extent that it has been so far—if proper and accessible data were made available.

I hope the amendments are helpful. Both for justice to be seen to be done and for the Government’s own purposes, it is important that proper records are kept; that in so far as it is possible, where decisions are being taken and judgments are being made behind closed doors, as much as possible is said in the public realm about those decisions and judgments; and, to go back to amendment 76, that those who have both an interest and a duty in reporting such matters are properly engaged in the process.

It is not often that one hears praise for the Daily Mail from Opposition Members, but the way that that newspaper—along with most other national newspapers—has conducted itself since the Bill was first envisaged in the Green Paper has been excellent. It has challenged the Government all the way along the line in exactly the sort of way that we would expect from a free press. Amendment 76 aims to assist our free press in that task. I hope that I have persuaded the Minister to go along with that, along with our new clauses.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I take on board the hon. Gentleman’s comments on providing as much assurance and transparency as is practicable, but I would say to him—I will come on to this point in relation to the new clauses—that it is important to note that the rules of court are about the operation of the court, not about recording data about what happens in court. I will come back to his point about information more generally.

There was considerable debate in the other place about whether the media should be notified every time a CMP is applied for. Amendment 76 would place a provision to that end in the Bill. The Government have considered the JCHR recommendations, but we are not sure how the amendment would work in practice, and I noted what the hon. Member for Cambridge said in his intervention.

The Government have amended the Bill to make it clear that all parties to the case must be informed that an application for a CMP has been made and of the outcome of that application. Those facts will generally be a matter of public record, as is the case for other court decisions, and the media will be able to report on them, as they can in any other case. The media may report on other cases that use CMPs and, in particular, they are able to report a finding on the issues. That is an improvement on the present position where cases may never be determined because they hinge on sensitive material that simply cannot be disclosed.

With regard to the media being able to intervene in individual cases, we think there are two problems. Civil damages cases that will be heard under this legislation are private law claims, and it may be inappropriate for third-party interventions to be made in such claims. The claimant may not want the media to intervene in the proceedings. In judicial review cases, the court will retain its current discretion to grant permission for a third party to file evidence or make submissions at the open hearing. The Government do not believe that the media would have sufficient standing to make representations about whether there should be a CMP in a case unless they are a direct party to the proceedings.

Although the media play a vital role in informing the public about current affairs, including important litigation, we do not think they should be given a position equivalent to that of the parties in the proceedings, and nor do we think that the views of the press should necessarily take precedence over those of the parties in the litigation itself. The outcomes of those cases will be reportable, subject to ensuring that information is not disclosed that would be damaging to national security. CMPs will provide the media with the opportunity to report on important issues, rather than reducing that opportunity.

New clauses 7 and 8 raise an important procedural point about how closed judgments would work in practice. Closed judgments contain material that, in the interests of national security, should not be disclosed, and that is the only basis on which the judgment can be classified as closed. As is the practice in existing statutory regimes providing for CMPs, such as TPIM and SIAC cases, judges will hand down an open judgment, in tandem with the closed judgment, and that open judgment will contain the parts of the judgment that can be disclosed without causing damage to national security. Judges will put as much of their reasoning in the open as possible, including statements of legal principle that are most likely to have cross-case relevance. It is the role of special advocates to make submissions about what material can properly go into an open judgment. If the court were persuaded that it would not harm national security, material will be included in an open judgment rather than a closed judgment.

It will not be possible to provide in the open statement the information as described under the new clauses. For example, revealing the length of a closed hearing, the number of witnesses and the nature of those witnesses could be damaging to national security. If a summary said that the closed judgment was five pages long but that that in another case was 50 pages long, that would give two people who wished the UK harm an indication of how much information we hold on them.

The Government believe that it is important to ensure that those who are entitled to access closed judgments can do so efficiently and effectively. For that reason, we have created a searchable database containing summaries of closed judgments that will allow special advocates and HMG counsel to identify potentially relevant closed judgments.

New clause 8 would require that certain information was collected for review by the independent reviewer of terrorism legislation. We will debate reporting and review later in our considerations, including the hon. Gentleman’s proposal to give the reviewer a role in relation to CMPs under the Bill, but it does not seem appropriate that rules of court should deal with such matters. A CMP cannot be applied for without notice to the other party, and that will be a matter of public record, so a requirement in the court rules to collect information on whether a claimant, defendant or intervener applied for a CMP is not necessary.

In addition, the new clause would put in place a commitment that all centrally recorded data would be subject to the provisions of the Freedom of Information Act 2000, but that would not be necessary. Government-held information is already subject to that Act. However, it is highly likely that the information requested under the new clause would be subject to section 23 of the Act, which protects information supplied by or related to bodies that deal with security matters, as well as section 24, which deals with national security.

The new clause would also require the judge to declare whether national security was an issue in proceedings. Again, we believe that that is unnecessary. The Bill makes it clear that the only reason why a court could go into closed session would be if the disclosure of some material relevant to the case would damage national security. We shall come to issues relating to the independent reviewer at a later stage, at which time perhaps we will perhaps reflect further in that context.

I hope that my explanation has provided some reassurance as to the nature of what the court rules are meant to achieve in procedural terms and set out why the Government consider that the proposals are not, in fact, necessary. I therefore respectfully ask the hon. Gentleman to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I shall not press these probing measures to a Division. The Minister has given a technical response about whether the new clauses address proper rules of court, but I hope that he will at least take on board the spirit of their intention. He is going into unknown territory. If CMPs are extended to civil proceedings, a body of cases will build up. They will not be reported in the ordinary way or dealt with in the same way, so there will be a deficiency in respect of precedent and the experience of handling such cases, and that will need to be dealt with. There will need to be proper recordkeeping, and insisting on openness, when possible, is a way around that. If such proposals are not to be included in the Bill, I hope at the very least that the Government will make provision for such a process.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I take on board the hon. Gentleman’s point and the need for openness where that is possible. Although we judge that such provisions are not required in the Bill, I will certainly reflect on his important point.

Andrew Slaughter (Labour, Hammersmith)

I am grateful to the Minister, and I renew my commitment not to press the measures to a Division.

In relation to the media, which are an important factor, I now understand what the hon. Member for Cambridge meant in his earlier intervention. I did not before, but between that intervention and now, I have read his Twitter feed from this morning, which includes this gem:

“Four votes - two Lib dem amendments to a gov't amendment, one labour to it, and the gov't amendment. We lost 9-10 each time.”

He said:

“Now calling a division on the principle of secret courts. Lib Dems voting no!”

He also said:

“Barracked heavily by labour MPs, who highlight that they are in favour of secret courts!”

Who knows what is going on in this very room while we sit here in silent contemplation? I can only assume the hon. Member for Cambridge lives in a fantasy world if that was what he thought happened here this morning, or perhaps those comments are for his fan club. I do not want such people to be engaged in this process, so I think I am happy that I left it at the media.

Julian Huppert (Liberal Democrat, Cambridge)

I am fascinated that the hon. Gentleman thinks that citizen journalists should be specifically excluded. I assume that he meant that as a joke, rather than as an official position. Of the things that he read out, which does he think is factually not right?

Andrew Slaughter (Labour, Hammersmith)

I might defer to the Government Whip, but it is the “we”, is it not? I take on board the point that my right hon. Friend the Member for Torfaen made earlier, because the hon. Gentleman is having a bit of an identity crisis in Committee. Who is he and who does he represent here? There ought to be a seat on the Committee for the Twitter party—he could take that up. He knows exactly what our position is, but I am not going to restate it, as we are getting close to adjourning.

Paul Murphy (Labour, Torfaen)

The Government will be very interested in what my hon. Friend has read out, but does he agree that Liberal Democrat members of the Committee have to make up their minds about whether they are in opposition or in government with regard to amendment 76 and new clauses 7 and 8?

James Gray (Conservative, North Wiltshire)

Order. The right hon. Gentleman has been here many years more than I have, but we must focus on amendment 76.

Andrew Slaughter (Labour, Hammersmith)

Had you not, with your authority, Mr Gray, said that, I would have said to my right hon. Friend that that is clearly not a matter for us, but it might become a matter on Report and Third Reading.

James Gray (Conservative, North Wiltshire)

Order. I think that we will stick to amendment 76.

Andrew Slaughter (Labour, Hammersmith)

Indeed. I have concluded my comments, so I beg to ask leave to withdraw the amendment.