Justice and Security Bill [Lords]

Public Bill Committee, 7 February 2013.

Clause 10 - General provision about section 6 proceedings

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 77, in clause 10, page 7, line 36, at end add—

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

(a) to ensure that the burden of proof in section 6 proceedings shall be on the relevant person and, where a party, the Secretary of State,

(b) to ensure that, upon the Secretary of State making an application under section 6(1), he shall be obliged to make full and frank unredacted disclosure to the court and special advocate of all material and information relevant to—

(i) the issues in the action,

(ii) the admissability of any evidence in section 6 proceedings,

(iii) the reliability of any such evidence,

(iv) the existence of witnesses or lines of inquiry leading to the discovery of relevant material, or

(v) the appropriate court procedure for determining the issues in the claim,

(c) to ensure that any material which the special advocate represents may have been procured by torture or by cruel, inhumane or degrading treatment is ruled inadmissible unless the contrary is proved to a high degree of conviction,

(d) to ensure that opinion evidence is ruled inadmissible unless provided by an independent expert,

(e) to ensure that the court shall not without the consent of the special advocate admit any statement constituting hearsay evidence without—

(i) the source being identified to the court’s satisfaction,

(ii) the court being satisfied that it is impracticable for the source to provide live evidence to the court by oral evidence or video-link and to be available for cross-examination, and

(iii) the court being satisfied that the words of the source are reported or recorded accurately and there is no risk of significant misquotation through multiple hearsay or otherwise,

(f) to ensure that the costs of all the parties to any proceedings in which a declaration under section 6 is made shall be paid by the Secretary of State in any event,

(g) to ensure that any judgement or decision of the court in any proceedings in which a section 6 declaration is sought shall be deemed to be an interlocutory judgement and any party excluded from such proceedings may at any time apply to the court to set aside such judgement or decision on the basis of relevant evidence not reasonably available to that party at the time of the section 6 proceedings.’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss new clause 10—Further provision about section 6 proceedings—

‘The judge at trial of the relevant civil proceedings may not take into account in determining the issues between the parties any material placed before him in section 6 proceedings which would not be relevant and admissible evidence in an open hearing.’.

Andrew Slaughter (Labour, Hammersmith)

It is a pleasure to see you back in the Chair, Mr Crausby, for what may be the last day of our deliberations, but who can tell? It is wrong to tempt fate. I have just noticed that this paper that I am holding is quite thick. The Government Whip should not be alarmed: it is not as much as it looks.

It is common ground that closed material procedures are unfair, in that they deny an excluded party the normal opportunities to challenge the reliability of evidence. The amendment and new clause, which address the rules of court under clause 10, propose ways to avoid unfairness that is avoidable within a CMP. I shall deal first with amendment 77 and briefly explain the purpose of each of the proposed new paragraphs.

Proposed new subsection (6)(a) would place the burden of proof on to the person seeking to use the CMP. It would be for the relevant person—usually the Secretary of State—to disprove the claimant’s case. Proposed new subsection (6)(b) would place on the party making the application for a CMP the usual duty when making an ex parte application—an application where the other party is not present—which is the obligation of full and frank disclosure.

Common law has long recognised that the court must have the full picture if it is to hear from only one side or on an equal basis for only one side. In a normal hearing where a party is absent, the absent party is protected by the obligation to make the full and frank disclosure that is on the party that is there. Consistent with that, the party must make full disclosure of the issues in the action, the admissibility of any evidence in section 6 proceedings, the reliability of any such evidence, the existence of witnesses or lines of inquiry leading to the discovery of relevant material, or the appropriate court procedure for determining the issues in the claim. When that material is provided within the CMP, it should be the full and unabridged version.

I shall read out a short quote from Lord Dubs, who made the point in the other place. He sought to prohibit

“the Secretary of State from redacting parts of documents disclosed to the special advocate. After all, special advocates are already security cleared. There can be no justification based on security risk or privacy to suppress parts of otherwise relevant documents from those within the security ring or circle. If part of the document is relevant, the entire document should surely be seen so that everything can be read in its context. Quotations out of context may not be meaningful.”—[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 488.]

That refers in many ways to the question posed by Lord Kerr in the case of al-Rawi. The point is that hearing from one side or hearing from both sides where one is disadvantaged may not give a clearer picture than not hearing the evidence at all, but may give a distorted picture. In the circumstances of a CMP, what I have described will be all the more important, as such a disclosure is a minimum requirement to allow the special advocate to conduct his investigation.

Proposed new subsection (6)(c) is important. It deals with torture evidence. There will be cases in which there may be a risk that evidence adduced has come from torture or other prohibited procedures. I do not need to convince the Committee of the ethical and practical necessity of excluding such evidence; the law is clear that such evidence is banned. The amendment provides a mechanism to ensure that torture evidence will not be adduced. It is appropriate that entry into the procedure should be triggered by representations of the special advocate regarding the material, and we would anticipate that open counsel, the judge and any other party would take a similar initiative. It is consistent with the approach taken in criminal proceedings that the burden of disproving that the evidence is not tainted by torture falls on the party relying on that evidence.

Typically, it will only be Government who have access to how information was obtained; a typical example may be information from prisoners held overseas. Excluded parties cannot hope to access information on the sources of information. The burden of proof must therefore be on the Government to prove that such statements may be used in evidence.

New subsection (6)(d) is directed at inexpert opinion evidence. It is particularly important in circumstances involving intelligence reports, which may rehash opinions rather than data, and are necessarily and notoriously speculative, to ensure that they do not gain weight beyond their worth in the proceedings. Hard data from such sources are useful; speculation is not. In circumstances where informed challenge of inexpert opinion is made almost impossible by the restrictions on communication placed on special advocates, inexpert evidence should not be relied upon.

New subsection (6)(e) is directed to the necessity of taking care when dealing with hearsay evidence. In circumstances where a party cannot hear or comment on hearsay evidence, the court must be especially careful. An excluded party cannot effectively challenge such information in the usual way. That is why the amendment directs the court’s approach and requires it properly to identify the source of hearsay and to provide the means to ensure the best possible evidence.

I anticipate that the Minister may make the same arguments that were made by Baroness Manningham-Buller, who said in the House of Lords that such a measure would inhibit sources from co-operating with the security services. Her opinion must be given due weight, and I quote:

“when individuals agree to provide that information in confidence, they seek reassurance that their lives will be protected, and anonymity is key to that. If they were identified, I am afraid that not only would they need to be resettled but very few more would be willing to work for the Government.” —[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 495.]

Such concerns are weighty, but the new subsection need not have the effect that concerns the Baroness. First, nothing in that provision could lead to the revealing of sources in the public domain. Instead, the review would be in closed proceedings, only to those special advocates given the highest security clearance. Secondly, in a case where the information as to the source appears so sensitive that it cannot be revealed, such information need not be relied on. It would be a great deviation from the standards of natural justice to admit that evidential weight might be given to hearsay information, where the court cannot even be satisfied as to the source. It would discredit the CMP, which is already unfair, and render it yet more vulnerable to criticism.

New subsection (6)(f) ensures that the costs of CMPs are met by the Secretary of State. Where recourse is had to exceptional and secret courts, it is appropriate that the costs of preparing for those proceedings, and proper representation, are made available to the parties in question. Provision for effective legal assistance is a necessary step to ensuring that proceedings run fairly and are seen to do so. The proceedings are necessarily complex and special, and good lawyers are needed. It is important for public confidence in the system that the disadvantages for parties inherent in the CMP cannot be said to be exacerbated by inadequate legal assistance. I realise that runs contrary to the current views of the Secretary of State for Justice, who believes that we can get justice on the cheap, but there will be additional costs, particularly in relation to secret courts. It is a truism to say that there are additional lawyers involved in the procedure, there are different additional applications and there are additional complexities. I think the Minister would agree that we wish to see the highest standards upheld, but that will inevitably cost more, and it seems unfair that the party who is already discriminated against through the process should have to bear the cost of that process.

New subsection (6)(g) would make CMPs interlocutory. The reason is self-evident: new evidence might emerge at a later stage, evidence that was said to be secret might come out in another way and be in the public arena, or it might no longer be necessary for the evidence to remain secret. It would, therefore, seem right to revisit the process in a way that was nearer to the ordinary standards of justice.

My amendment is a probing one, but it is also analytical in relation to how the Government see CMPs working, if they become part of civil procedure, so I would value the Minister’s response to each of my points. Do the Government accept my proposals, and if not, why not?

The intent of new clause 10 is to avoid consideration in CMPs of evidence of a type that would otherwise be excluded in open court. In particular, it seeks to prevent otherwise prohibited consideration of intercept evidence. Lord Thomas of Gresford in the other place said:

“It would be quite unacceptable for the trial judge to take into consideration, in determining the issues between the parties, anything that not only is never disclosed to the claimant but that would not be admissible in evidence if it were disclosed. The claimant would be doubly prejudiced: there would be evidence given against him in secret that was not admissible, if the judge were to take it into account.”

Lord Pannick then said, and I agree with him, that

“as a matter of principle it is surely one thing for the Bill to allow the judge in a secret procedure to look at material that is admissible in court but which the state is unwilling to have looked at in open court because of its sensitivity. One understands the purpose of those provisions. It is quite another thing for the state to be allowed to rely in the closed hearing on material that is, in any event, inadmissible in open court.”

The Government’s defence of the closed material procedure is that the state should not be in a worse position because the evidence on which it wishes to rely cannot be adduced in open court. As Lord Pannick went on to say:

“To allow the state to rely on intercept evidence in the closed procedure—evidence that is inadmissible in open court—would put the state in a better position”.—[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 490.]

The debate in the other place largely revolved around intercept evidence, and I am sure that the Minister will refer to that directly, but mine is a more general point, and that is why the new clause is phrased as it is. It is another equality of arms matter: the way in which the procedure works, given its initial inherent unfairness and what we have said previously about equality of arms, should not be used to front-load the Government’s case with additional advantages, and new clause 10 simply sets out to ensure that that does not happen.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I welcome you to the Chair again this morning, Mr Crausby.

I note that the hon. Gentleman’s amendment and new clause are of a probing nature and that they develop a number of themes that were advanced in the other place, so I think he will know that to an extent my response will be reflective of some of the comments that were made in the House of Lords. Equally, I recognise the fair points that he advances to challenge, and to seek to ensure that the processes that we intend to adopt for closed material proceedings are appropriately thought through and applied in practice.

The starting point that I would highlight is that the Bill does not seek to change the civil proceedings rules, save where that is necessary in order to have a closed material procedure. We are not otherwise changing the ordinary rules in a civil procedure relating to disclosure or evidence.

Amendment 77 introduces changes that we judge to be simply inappropriate and unnecessary. In places, it seeks to change the ordinary rules and employ safeguards beyond those that would ordinarily apply in civil proceedings and in other closed material proceedings. We do not accept that any such changes are necessary. They introduce inconsistency and the potential for confusion. Civil procedure rules will otherwise apply as normal and we believe that they are adequate to achieve fairness and deliver justice, notwithstanding the closed nature of the proceedings.

The hon. Gentleman asked me to respond to each of the individual points, and I will do so. Proposed new paragraph (a) of the amendment calls for the burden of proof in section 6 proceedings to be

“on the relevant person and, where a party, the Secretary of State”.

It is not clear how that would work. In that context, “section 6 proceedings” could mean the application for a declaration, the application for a CMP or the full CMP itself. Different issues will be determined in each. Furthermore, the Secretary of State may be a party to the section 6(1) proceedings, but not to the main action. The present position, and the correct line, is that the burden of proof in a matter lies on the party asserting that matter and that will of course apply under the Bill in its current form. It is for the court to decide whether the application is justified.

Proposed new paragraph (b) imposes a number of requirements that are potentially incredibly onerous. The provision applies only to the Secretary of State, whereas under the terms of the Bill any party is entitled to make an application under section 6(1). That seems inequitable and unfair. Further, the Secretary of State may not be a party to the main proceedings and therefore would not necessarily know all the issues in the case or be in a position to satisfy the requirements set out in proposed new paragraph (b).

In section 6 proceedings, ordinary rules on disclosure will apply, subject to the CMP provisions, and that is sufficient to ensure that the court is able to reach a view on whether specific pieces of evidence should be disclosable in a CMP. Proposed new paragraph (c) specifies that “any material” or information

“which the special advocate represents may have been procured by torture or”

other

“cruel, inhumane or degrading treatment…unless the contrary is proved to a high degree of conviction”

should be ruled as inadmissible.

May I be absolutely clear? The Government stand firmly against torture and cruel, inhuman and degrading treatment or punishment. Where the UK Government know or believe that evidence has been obtained through the use of torture, they will not and cannot rely on it in judicial proceedings.

The rule against admissibility of evidence obtained by torture stems from article 15 of the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment, which provides:

“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”

That very clearly states the position.

Proposed new paragraph (d) of the amendment would be inconsistent with general rules on opinion evidence, and proposed new paragraph (e) imposes an unnecessary restriction on hearsay evidence. I will explain that point; there are already rules that provide adequate safeguards for the use of hearsay evidence.

Julian Huppert (Liberal Democrat, Cambridge)

The Minister is as generous as ever in giving way. Regarding proposed new paragraph (d), there have been problems with equivalent processes in the US and how to ensure that experts are within the closed material procedure, which can be important if there is evidence that the advocates are simply not qualified to look at or understand. Will he at least look at the problems in the US and try to ensure that there is a way to resolve them sensibly in the UK?

James Brokenshire (Conservative, Old Bexley and Sidcup)

As I made clear, the Government will not and cannot rely on torture evidence—

Julian Huppert (Liberal Democrat, Cambridge)

Paragraph (d).

James Brokenshire (Conservative, Old Bexley and Sidcup)

Sorry, I see. If there is an issue with the operation of the special advocate, I am happy to reflect on the point made by the hon. Gentleman and if there is further clarity I can offer him, I will certainly seek to do so. I will examine the points and see if there is anything on which I could come back to the hon. Gentleman.

I was coming to the issue of hearsay evidence, because it touches on some of the themes that the hon. Gentleman pointed to. Section 4 of the Civil Evidence Act 1995 provides that the court is to decide what weight, if any, to give hearsay evidence. A judge can include a number of considerations, including whether it was reasonable to call a witness, or if there was any motive to conceal or misrepresent. It is a matter for the judge to assess what weight to give to particular types of evidence deployed in the case, and not court rules. The court and the special advocate test the evidence.

The judiciary and the special advocates are rightly independent, and if a piece of evidence is remote hearsay, and unsupported by other material in the case, the court may decide to discount it. The important fact is that the decision rests with the court. It might be helpful to briefly highlight what Lord Hope of Craighead said on this point in the case of A and others:

“The circumstances in which the information was first obtained may be incapable of being detected at all or at least of being determined without a long and difficult inquiry which would not be practicable. So it would be unrealistic to expect SIAC”—

obviously a parallel CMP-type arrangement—

“to demand that each piece of information be traced back to its ultimate source”.

The identity of an agent cannot be revealed for article 2 reasons except in the most exceptional circumstances. In most cases identification of an agent to even a handful of people would potentially put that person’s life in danger, as was pointed out by Baroness Manningham-Buller in the other place. It would not be safe for the Secretary of State to call such a witness, even in a closed hearing. If it were to happen, it would have, in our judgment, a hugely chilling effect on agent recruitment and retention as it would lead to doubt that an identity could be protected. I assure the Committee that in current CMPs the agent’s reporting will in many cases be corroborated by intelligence material from other sources; for example, intercept, eavesdropping or surveillance. It is often the case that the relevant security and intelligence agency will provide an assessment, in closed, of the agent’s reliability and of the reliability of the reporting, in order to assist the High Court—or the Special Immigration Appeals Commission as the case may be—in determining how much weight to give the evidence, based on the agent’s reporting.

New paragraph (f) of the amendment would require that rules of court should provide for the Secretary of State to pay all costs of all the parties in any proceedings in which a declaration is made under section 6. Proceedings in which a declaration is made indicate that the application process for a CMP declaration from the court has been successful. Obviously that is the initial stage, when the judge decides whether CMP is in the interests of the fair and effective administration of justice in the proceedings. It is highly likely that it would involve special advocates. Under the amendment, it is unclear who would pay if the application was unsuccessful. We think it should be for the judge and their discretion to decide how to apportion costs.

Lastly, new paragraph (g) would allow for an excluded party to appeal the judgment at any time, on the basis of evidence not available at the time of the section 6 proceedings. The effects of treating it as an interlocutory judgment are not clear. If parties were regularly to raise such appeals it could cause a significant resource burden on the courts. We believe it is unnecessary in any case, given that a party can appeal anyway, or ask the court to review or revoke a declaration. Obviously, the court has the power to revoke a CMP at any time, and as we have previously discussed they are also obliged to consider whether a CMP is still in the interests of the fair and effective administration of justice in the proceedings at the end of the stage 2 disclosure exercise.

New clause 10 limits the material that can be taken into court in a CMP to only that which would be relevant and admissible in an open hearing. The very purpose of a CMP is to allow material to be disclosed that is too sensitive to be disclosed in open court. From my reading of the new clause, that will likely include material from the agencies or intercept that it would not be lawful to disclose in open court. Limiting the admissibility of evidence in that way, therefore, would often render CMPs effectively unusable. The exceptions to allow such material to be included were provided for by proposed new clauses 6(1C) and 6(1D), in amendment 55, which was debated earlier. They include intercept material. Hon. Members have agreed on the need for CMPs in a small number of circumstances and, therefore, on the need for a process that takes such material into account.

The Bill does not seek to change the rules on civil proceedings, save where that is necessary to have a CMP. The proposals would be likely to introduce confusion, as well as inconsistency. On that basis, I ask the hon. Gentleman not to press them.

Andrew Slaughter (Labour, Hammersmith)

The Minister, in replying to my submissions on amendment 77, relied extensively on judicial discretion—it is nice to see it come up in the Government’s proposals at last. The purpose of rules of court is to give guidance where that is thought necessary. As the Minister will understand from the comments I have made throughout these proceedings, I am a great supporter of judicial discretion. However, where a wholly new and alien procedure, such as CMPs, is introduced in civil proceedings, we need to be rather more cautious.

I will not ask the Committee to vote on amendment 77. My comments are on the record, and there are clear concerns. I am not particularly persuaded by the Minister’s answers, but so be it. I wish he had said a little more about the intercept evidence point in new clause 10, because that is the subject of the debate. Again, however, it is for him to respond as he wishes, so there we are. I beg to ask leave to withdraw the amendment.

Clause 11 - Sections 6 to 10: interpretation

Clause 12 - Certain exclusion, naturalisation and citizenship decisions

Andrew Slaughter (Labour, Hammersmith)

I will not detain the Committee greatly on the clause, but I want the Minister’s response on one point.

We all received briefing on clause 12 from the Immigration Law Practitioners Association. The association proposes a number of amendments, including leaving out clause 12 entirely and maintaining the status quo, which would leave to judicial review decisions relating to certain exclusions of non-European economic area nationals from the United Kingdom that were made wholly or partly on the grounds that their presence would not be conducive to the public good, as well as certain decisions to refuse to naturalise or register a person as a British citizen. That is clearly the association’s view, but the Opposition have not tabled amendments, because that is not our view in this respect.

The association proposes alternative provisions to remove the proposed option for the Secretary of State to issue a certificate to the effect that information should not be made public in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest. The amendments appear technical, but are directed to restricting to national security interests the grounds on which the Special Immigration Appeals Commission can hold closed material procedures in the cases provided for by the clause. That would bring the Bill’s immigration-related provisions into line with the general provisions concerning closed material procedures in relevant civil proceedings.

Subsection (2) of a new clause proposed by the association would restrict the use of closed material procedures to the grounds permitted in relevant civil proceedings—that is, national security grounds. Subsection (3) would require procedures to ensure parity of safeguards for applicants and appellants before SIAC, as for parties in relevant civil proceedings. Subsection (4) would permit the commission to determine how that parity was to be ensured. The aim of the association’s new clause is:

“To ensure that safeguards, both procedural and jurisdictional, as to the use of closed material procedures in non-immigration cases are applied equally in immigration cases.”

The cases that the Bill proposes to cover are already covered by judicial review. When Mr Justice Ouseley, in the case of AHK and others, recently considered that in some cases a CMP might be appropriate, he had been told nothing other than that naturalisation had been refused on the grounds of character and that it would be contrary to the public interest to give reasons. His dilemma was:

“It is not so much that the case is untriable; it can be tried. It is simply that the evidence means that the Claimant cannot win”,

Unlike the Bill, however, he felt that the CMP should be considered only on the basis that public interest immunity would first be exhausted. ILPA argues that protections afforded by Parliament on the use of CMPs in the civil context should apply in the immigration context. It states:

“Ministers should be asked to give undertakings to amend the SIAC procedure rules to reflect the conclusions reached in the consideration of this Bill. Those appearing before SIAC should not be subject to a lower standard of protection than those in other courts.”

The point that the Minister may or may not wish to respond to, but with which I wish him to deal, is the Ouseley point, which is that, following AHK and others, the view of the court was that CMPs should be used only in those circumstances on the basis that PII should first be exhausted.

James Brokenshire (Conservative, Old Bexley and Sidcup)

The hon. Gentleman rightly highlighted the problem of when an adverse decision on a naturalisation or citizenship case is informed in part or whole by sensitive material. The amendment enables such decisions to be challenged within the ambit of SIAC.

The point at issue is that decisions made by the Secretary of State in such circumstances are not subject to an automatic right of appeal and, therefore, the only route is judicial review at the High Court. There are a number of cases in which information of a sensitive nature justifies the action to exclude or refuse nationality. Such information could indicate that the individual was engaged in terrorism-related activity or serious criminality. In other cases, a decision might seriously impact on the UK’s international relations with another country.

It cannot be right in such circumstances that the Secretary of State is restricted in carrying out his or her duty to protect the public on the presumption that such material cannot be produced in judicial proceedings to defend and justify a decision. Equally, the claimant should not be denied judicial assessment of a decision on the basis that no forum is appropriately equipped to handle the material behind the decision. That is the unsatisfactory situation that Justice Ouseley mentioned in the case of AHK and others. He acknowledged that, in his judgment, the rather unsatisfactory outcome should be remedied in Parliament by provision for a closed material procedure, at least in that sort of case. It is an unsatisfactory situation that the court is unable to take into account the very material upon which the decision was based, and that could lead to a case being dismissed as untriable, which would prejudice the claimant in the interests of natural justice or, in the circumstances that the hon. Gentleman has fairly explained, it could simply lead to the Secretary of State’s view being upheld.

The question that the hon. Gentleman poses about PII being exhausted takes us back to some of our previous debates on closed material proceedings, including on amendment 55 to clause 6. I simply restate the point I made about a case being saturated with information, and as David Anderson pointed out to the Joint Committee on Human Rights, the exercise might be pointless. It may be so clear that a CMP-type arrangement is required that going through a PII arrangement, or fully exhausting it, would simply be inappropriate. I underline that point in responding to the hon. Gentleman. The points I made in relation to clause 6 are equally applicable in responding to the point that he has now made about this particular clause.

Clause 14 - Disclosure proceedings

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 78, in clause 14, page 11, line 14, at end insert

‘where that information relates to national security or the interests of the United Kingdom’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

Amendment 79, in clause 14, page 11, line 15, leave out ‘an’ and insert ‘a foreign’.

Amendment 80, in clause 14, page 11, line 17, leave out ‘an’ and insert ‘a foreign’.

Amendment 81, in clause 14, page 11, line 18, leave out paragraph (d).

Diana Johnson (Labour, Kingston upon Hull North)

Welcome back to the Chair, Mr Crausby. Even though we are coming to the end of the Bill, this is my first chance to welcome the Under-Secretary of State for Justice to his new job. I knew him of old, when he was a Home Office Whip, a job he did very well and with good humour, which is a requirement when dealing with Home Office matters. As a former Whip, I would certainly say that it is good to move to a speaking part.

Clause 14 and these amendments deal with the Norwich Pharmacal principle. In order to deal with the amendments properly, it would be helpful to spend a few moments setting out the background to the clause and the reasons why the amendments have been tabled. That may save us from having a stand part debate later on in the proceedings.

The case of Norwich Pharmacal was not about national security at all; it was a customs matter. The Norwich Pharmacal company was the exclusive licensee of an antibacterial product. Between 1960 and 1970, it became aware that another company was importing that antibacterial product. In order to be able to take action, it needed to identify that company, and only UK Customs and Excise knew the identity of the second company. In 1974, the House of Lords ordered that UK Customs and Excise disclose the name of that company.

The principle established in that case, and subsequently adopted in other Commonwealth countries, was that a third party could be forced to divulge information, even if they were not at fault or party to the original proceedings. There are five conditions that must be satisfied before a third party can be made to divulge information. First, the claimant must have a reasonable case in the main litigation. Secondly, the defendant must in some way be involved in the wrongdoing, which could be innocently. Thirdly, there must be no other way for the claimant to access the information. Fourthly, the claimant must show that the disclosure is necessary, and the court can only permit a disclosure in so far as it is necessary. Fifthly, it must be in the public interest to disclose the information.

The Government have brought the matter before us in clause 14 because of the case of Binyam Mohamed. The UK court applied the principles of Norwich Pharmacal—essentially, a patent case—in a case involving national security. Binyam Mohamed, as all members of the Committee will know, was facing capital charges in the USA, and his lawyers argued that the UK had evidence in its possession that proved that Mr Mohamed had been tortured. The allegation was not that the UK had tortured Mr Mohamed, but that the UK possessed evidence that proved that the UK had been aware of the torture. After lengthy court proceedings both here and in the United States, the court ordered the disclosure of that information. The problem was that the information had come from the US intelligence agencies, and the possibility of further information being disclosed in the future has hindered information sharing with the US and other allies.

There have been different interpretations of exactly what the Court of Appeal ordered in the case of Binyam Mohamed, but rightly or wrongly our allies were left with the impression that we had divulged classified information and that the control principle had been compromised. To set that in context, the control principle has been usefully explained by the Constitution Committee of the House of Lords as providing that

“intelligence shared by state A with the intelligence agencies of state B remains under the control of state A even after it has been shared. In particular, state B may not disclose the intelligence shared with it by state A without the consent of state A”.

In evidence to the Joint Committee on Human Rights, David Anderson QC, the independent reviewer of terrorism legislation, summarised the attitude of the United States:

“Well, if we give you our secret information on the basis that you promise to keep it to yourself and then you start showing it off to other people, we’re not going to give you as much as we did before”.

Julian Lewis (Conservative, New Forest East)

There was a complicating factor in that case. The British court took the decision to reveal the information partly because it had already come into the public domain. The British court not unreasonably thought that that would reassure the Americans that there was no real breach of the control principle. All I can say to the hon. Lady is that the reaction of the Americans showed that reasonable assumption not to be the case. The Americans were very upset about the control principle being breached, irrespective of the fact that the information had already leeched out into the public domain.

Diana Johnson (Labour, Kingston upon Hull North)

I am grateful to the hon. Gentleman. That sets in context exactly the position that we find ourselves in. It is helpful to have that on the record.

David Anderson went on in his evidence to emphasise the scale of the problem. Having made plenty of inquiries, he said that he had seen clear evidence of a reduced willingness on the part of our allies to share sensitive information with us. That backs up what the hon. Gentleman has said. We cannot underestimate the importance to the UK of intelligence sharing, particularly with the US. In the other place, there were frequent references to the almost unparalleled level of co-operation on intelligence matters between us and the United States, something I know that my right hon. Friend the Member for Torfaen has substantial experience of, as do other members of the Committee, as we have heard.

I understand that the United Kingdom has received assurances that it would never be deprived of life-saving intelligence, but the Opposition accept that that is not enough. I remind the Committee of the comments of Baroness Manningham-Buller in Committee in the other place:

“The nature of intelligence work is putting together information from perhaps five or six different countries and 20 different organisations—little bits and pieces of a jigsaw that, together, might save lives”.—[Official Report, House of Lords, 23 July 2012; Vol. 739, c. 553.]

Therefore, the Opposition support the Government doing what is necessary to ensure that the UK continues to get every strand of evidence and all the bits of the jigsaw puzzle. Indeed, there is general consensus on the need to do so. It is worth reminding ourselves why this issue differs from the ones we have been discussing prior to clause 14. Clearly, this is different from the case of a person bringing proceedings directly against the UK Government. As we have discussed at length in Committee, we know that, in those cases, there are measures that can be used—the closed courts measures—to protect information that might otherwise be disclosed. The ultimate way that that can be dealt with is through the withdrawal of any proceedings brought by the British Government or through an attempt to settle the matter. However, under the Norwich Pharmacal principle, the only option is to use PII, and if that is not successful the information has to be disclosed, and that of course would go to the heart of the control principle that we all wish to protect. I think that that is worth noting.

We therefore support the Government amending the law to protect the control principle, and we accept as necessary their aim of preventing sensitive information from being disclosed under the Norwich Pharmacal principle. Where we disagree with the Government—this leads to the amendments—is on the definition of sensitive information as laid out in the Bill. In particular, we feel that the Government have been a bit too keen to protect information and, perhaps unwittingly, have included not only information originating from foreign intelligence agencies but UK-sourced information—in fact, any information about the intelligence agencies at all.

The Opposition think that the clause has gone too far. We want to protect the control principle but we think that can be done by narrowing the definition of sensitive information as set out in the provision. Even David Anderson QC referred to the current drafting as having an element of overkill.

To achieve our desire to deal with the control issue but in a more focused way, amendment 78 amends clause 14(3) to define as sensitive any information held by an intelligence service

“where that information relates to national security or the interests of the United Kingdom”.

I tabled the amendment because the Opposition do not believe it is necessary to introduce a blanket exemption for all information from the security services.

To illustrate that, I draw the Committee’s attention to two examples where I think we would want the intelligence service to release information. The first is the hypothetical example of a cleaner employed by G4S but working in the building of the Secret Intelligence Service; a similar scenario was suggested in the other place. Let us imagine that the cleaner in the course of her duties injures her back, and as a result of those injuries she is unable to work for several months and wishes to bring a claim against her employer, G4S. We have to remember that, as well as having a unique role protecting this country, the intelligence agencies are a Government agency with a duty of care and responsibility to people who work there.

As the legislation is currently drafted, the cleaner would be unable to request any information at all from the SIS in support of her claim. There may be basic pieces of information that the SIS would hold that would help her case: personnel records showing when she arrived in the building, information about the level of lighting in the area, the floor type, perhaps even CCTV. It may be the case that it would be impossible to prove G4S’s liability without access to that information, yet the court would be unable to get the SIS to release any of that information because it would be caught under this blanket ban.

I mentioned the tragic case of Gareth Williams when we discussed part l of the Bill. As we know, the coroner in that case was very critical of the pastoral support provided by the agencies to Mr Williams and the co-operation with the Metropolitan police after his death. Many questions remain about how he died and there could be civil actions in the future.

It occurs to me that if such an action were taken against the Metropolitan police, for example, under the Bill as it stands there would be no obligation on the employer to release any information about Mr Williams, even if it was something as innocuous as the days on which he attended the office. David Anderson QC also stated:

“Surely at least in one respect what is proposed is disproportionate, because it applies to all information within the possession of the intelligence agencies. Presumably that includes the bill from Tesco for their sandwiches, to which no security importance whatever attaches. It is very difficult to see how that could be proportionate, even if it does turn out to be necessary to have some sort of blanket exclusion, as suggested in the Bill.”

We do not think our amendment would in any way undermine the control principle, the operation of the agencies in respect of national security or the UK’s interests. If this small amendment were accepted, the disclosure of operational matters would be prevented. However, the amendment would allow legitimate requests for information. One of the five principles that have to be followed when deciding whether Norwich Pharmacal should apply is that the release of the information should be in the public interest. That is why we have tabled amendment 78.

Amendments 79 and 80 both seek to limit the definition of “sensitive information” to information derived from foreign intelligence agencies. That is because of the problems that have arisen from the case of Binyam Mohamed involving the information given by a foreign state.

The control principle that we seek to protect is one of absolute control over foreign intelligence, yet the Bill makes no distinction between foreign and UK intelligence, or foreign and UK agencies. Amendment 79 seeks to make that distinction in relation to information obtained from, or held on behalf of, an intelligence service. We want to restrict this to a foreign intelligence service.

Of course there will be occasions when British intelligence needs protecting, and during the course of the Bill we have had extensive discussions on the mechanisms for doing that. I believe that these mechanisms are sufficient. The case of Binyam Mohamed threatened the control principle and information sharing, and the Opposition will support the Government in addressing those problems. However, we think the drafting of the Bill goes too far.

Bob Neill (Conservative, Bromley and Chislehurst)

The hon. Lady is making her point carefully and proportionately, but is there not an irony in how her amendment is drafted?

There could be the slightly odd situation of a foreign national, resident abroad, suing a third party country in a foreign jurisdiction, but because a British intelligence agency had been—perhaps innocently—mixed up in the matter, information held by the British intelligence agency could be disclosed to somebody who had no connection with the United Kingdom and was involved in a dispute with a Government who had nothing to do with the United Kingdom. On the other hand, it might be in the UK’s broader interest to maintain good relations, beyond the control principle, with that country. Is that really a wise situation to get ourselves into?

Diana Johnson (Labour, Kingston upon Hull North)

As I understand it, there may well be a backstop available under paragraph (3)(e), in terms of a certificate being issued. I think we might come on to that in a moment. I would like to finish dealing with the point about why we think our amendment would focus on the real problem, which is to do with the control principle and making sure that that remains in force.

Amendment 80 does something similar in relation to information derived in whole or in part from information obtained from or held on behalf of an intelligence service. Again, the Opposition want to restrict that to foreign intelligence. We accept that there is not always a clear distinction between UK intelligence and intelligence that has been derived from foreign agencies. I have already quoted the noble Baroness Manningham-Buller on that point, but the Committee should realise that the noble Baroness herself accepted that the Government’s proposals went further than necessary in upholding the control principle.

It is also important to look at the protections already in the Bill around that very point. Even if we pass amendments 79 and 80, the Bill will still offer complete exemptions to information

“obtained from, or held on behalf of, an intelligence service”

and to information

“derived in whole or part from information obtained from, or held on behalf of, an intelligence service”.

We think that that is sufficient to protect the control principle in regard to any information even one shred of which is derived from foreign sources.

Amendment 81 seeks to remove from the definition of “sensitive information” the reference to information

“relating to an intelligence service”.

The Opposition do not see the need for that paragraph, given all the other protections in the Bill.

We are seeking in special cases to prevent the courts from accessing information as they would normally do in the pursuit of open justice. That is something we should do only to address a specific problem and we need to ask constantly whether the measures are proportionate.

The Opposition do not see a specific need to include paragraph 3(d) to protect the control principle. As my noble Friend Baroness Smith of Basildon said in the other place:

“there is a clear difference between descriptive information about foreign intelligence services and the intelligence supplied by them. It is the second, not the first, that the control principle relates to and which our foreign partners are concerned could be disclosed—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1921.]

My noble Friend went on to press the Minister, the noble Lord Wallace of Tankerness, to give a specific justification for including the passage in the Bill. The Minister’s response was to suggest that the paragraph was included to protect information held or obtained by other Departments, namely the Home Office, which relates to the work of the security agencies.

With the greatest respect to the efforts of the noble Lord, however, that completely misses the point. The purpose of clause 14 is not to protect any information that the security agencies have or which other Departments have about the agencies, but to protect information that originates from foreign intelligence agencies.

Clause 14 is included to address a specific need to uphold the control principle; it is not intended to offer general protection to information held by Government Departments relating to the security agencies. If the information held by the Home Office in any way related to foreign intelligence—and therefore invoked the control principle—that would be covered by the other protections we have already discussed at length.

Could the Minister tell us whether, if we removed paragraph 3(d), there would still be the power to issue a certificate under 3(e)? Would that not be sufficient? Will the Minister specifically outline the requirement to include paragraph 3(d) and how that directly relates to the control principle? If the Minister is unable to do that, he should accept our amendment.

May I raise two small matters about the clause? First, I understand that the Norwich Pharmacal principle does not apply in Scotland, yet the Bill covers Scotland. Will the Minister explain the position in relation to Norwich Pharmacal and Scotland?

Secondly, will the Minister explain exactly what paragraph 7(a) means? I am struggling to follow what that would mean as it is currently drafted. I do not know whether there is a drafting error.

Michael Crockart (Liberal Democrat, Edinburgh West)

I do not intend to talk particularly about the amendment but, given what the hon. Member for Kingston upon Hull North said about general comments and not having a clause stand part debate, it is probably best that I make my comments now.

It is interesting to be a Scottish MP speaking about English law, despite my previous occupation. I mentioned that I was speaking about English civil law to a colleague, who said, “You must be very happy speaking about English people killing each other”. I realised that he had misheard me; he thought I had said “English civil war”.

I will start by admitting that for me, on the Joint Committee on Human Rights, the Norwich Pharmacal part of the Bill was the most difficult to understand fully, especially as part of a Committee filled with civil rights lawyers. But I got there eventually.

Ultimately, the JCHR agreed that the Norwich Pharmacal application carries a heightened risk of disclosure, especially of material damaging to national security. After all, the very purpose of the application is to order disclosure of material. We also agreed that the use of Norwich Pharmacal towards intelligence information was a novel application, to say the least, and one for which it was not meant or designed. There was debate about whether there was indeed a serious risk of a UK court ordering such information to be disclosed. As my hon. Friend the Member for Cambridge said, there was some dubiety around the circumstances pertaining in the Binyam Mohamed case and whether the information had already been released.

Given that a perception of a leaky court system can cause as much damage to intelligence flows as an actual weakness, we agreed that change was necessary. The focus therefore moves to whether the change proposed is proportionate, and on that the Joint Committee on Human Rights and the Government disagree.

I do not intend to go into the amendments suggested by the JCHR in great detail because they have not been tabled, but I am disappointed that the Government have not seen fit to reconsider their proposals in the light of those suggestions. I therefore have a few questions for the Minister.

The Bill seems to try to give an unconditional guarantee that was not required by other intelligence services. The independent reviewer of terrorism has been extensively quoted, but I have one more quote to add to the list. He made clear in his evidence to us that it is accepted in the US that

“the letter of the US law does not give an unconditional assurance that…UK-sourced intelligence was safe from disclosure in American courts.”

Given that that is the situation in America, it seems strange that we should be changing the law to make that unconditional guarantee in this country. The present system already assumes a high level of deference, but not an unconditional guarantee, when dealing with PII applications. It is therefore incumbent on the Government to explain why they feel that they need to give such an assurance.

Julian Lewis (Conservative, New Forest East)

I think I may be able to help the hon. Gentleman. As I said in my earlier intervention, one could not have had a more reasonable case for breaching the control principle than happened in the Binyam Mohamed case—after all, the information was already in the public domain. Yet it still did damage to the control principle. We feel that such an absolute response is necessary to rectify that damage. If something similar happened in America to our material—fortunately, that has not happened yet—I suspect that we would go back to them with a similar request.

Michael Crockart (Liberal Democrat, Edinburgh West)

I disagree; I hope that we would not. I hope that we would be rather more circumspect and reasonable in our response if the information had already been placed in the public domain in this country and was then released in the American courts. We need to ensure that the response is proportionate. I feel that the Bill rather oversteps the mark.

Heidi Alexander (Labour, Lewisham East)

The hon. Gentleman is making the point that we need to find a way to respond to the situation proportionately, and the Opposition amendments seek to do exactly that. Will he share his thoughts on those amendments? He has been talking about the amendments that might have been possible as a result of the discussions in the JCHR, but will he say specifically whether he will support our amendments if they go to a vote?

Michael Crockart (Liberal Democrat, Edinburgh West)

I have looked at the Opposition amendments and I do not think they go far enough. They do not do exactly the same as the JCHR hoped. The Opposition propose deleting paragraph (d); the JCHR felt it was necessary to delete paragraphs (a) to (d) and to rely entirely on a certification system, but dealing with sensitive information in a different way.

Andrew Slaughter (Labour, Hammersmith)

I hope we are not getting into another “say one thing and do another” view from the Liberal Democrats, as we did on the closed material procedures point. If the hon. Gentleman agrees with the Joint Committee amendments, why did he not table them?

Michael Crockart (Liberal Democrat, Edinburgh West)

Our focus—I know the hon. Gentleman is going to come back and ask who I mean by “our”; I mean my hon. Friend the Member for Cambridge and me. Our focus is very much on closed material procedures. Once I have heard the Minister’s reply, I reserve the right to come back to the matter on Report and see what the JCHR’s continuing view of the situation is; it will have had a chance to consider the Bill in its current form and how it leaves this Committee. I will speak to the JCHR in great detail and see where we are when we get to the end of this process.

I am certainly not in danger of saying one thing and doing another; I came here to make it clear that I support the JCHR’s position. The Opposition amendments do not do that. I do not think they go far enough, and I will not support them.

Andrew Slaughter (Labour, Hammersmith)

I seek clarity from the hon. Gentleman. He said that our amendments do not go far enough. We did not think that his amendments on closed material procedures went far enough, but we still supported them because they were better than nothing. I hope that therefore he will support ours. If, on the other hand, he thinks, nothwithstanding not having troubled himself to table amendments, that the clause is defective, presumably he will vote against the clause. At the moment, he appears to be saying that he will do nothing.

Michael Crockart (Liberal Democrat, Edinburgh West)

I have made my position crystal clear. I support the JCHR’s position and do not believe that the hon. Gentleman’s amendments go far enough. I support the fact that change is required to deal with the perception of weakness in the court system. I cannot be any clearer than that.

I have one final point to make—on the question of what is regarded as “sensitive information”. I invite the Committee to compare the broad definition included in the Bill with that used by the Intelligence and Security Committee. It is quoted in the JCHR report and states:

“The Government says that material held by, relating to or originating from one of the intelligence services is by definition security-sensitive information. The Intelligence and Security Committee, however, distinguishes between sensitive information and information the public disclosure of which really would jeopardise the national security of the UK…the ISC considers that there are only two narrow categories of information which can rightly be said to be that sensitive”.

Those are defined as:

“UK intelligence material which would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability…and foreign intelligence material, provided by another country on a strict promise of confidentiality”.

The JCHR therefore recommended that Norwich Pharmacal jurisdiction be restricted to these categories of information and exclude those narrow definitions. Will the Minister explain why that suggestion cannot be adopted and why he feels he must rely on a much broader category and definition?

Paul Murphy (Labour, Torfaen)

Welcome to the Committee again, Mr Crausby. The hon. Member for Edinburgh West made an interesting point regarding what might be called reciprocity in terms of dealing with intelligence material. He was right to tell the Committee that this is an issue. Some years ago, when I was in Government, there was a similar case in the United States of America, which never actually came to court. Had it done so, it could have revealed intelligence material from our own country, so there is a case for looking at how to deal with that particular situation.

I endorse the comments of my hon. Friend the Member for Kingston upon Hull North in her measured, sensible and thoughtful speech and support the Government on this part of the Bill. My own experience over the years, both as a Secretary of State who had daily access to sensitive material and as the Chairman of the ISC, tells me that our relationship with the United States of America in intelligence terms is absolutely vital to the security of our country. Of that, there cannot be any doubt. Ever since the CIA was established after the war, the intimate relationship between our own services and the United States has been crucial in ensuring that we not only combat terrorism, but deal with a host of threats that come before us jointly.

Of course, we have relationships with our European partners, as well as Australia, New Zealand, Canada and so on, but nothing as important as that special relationship with the United States. Therefore, it is vital that we deal with the problems of intelligence that comes to us in such a way that the United States would not be afraid of giving us intelligence. It is vital that we do not compromise the US in any way in terms of the intelligence that we rightly need for the work that we do throughout the globe. However, my hon. Friend’s points were valid and I hope that the Minister will be able to deal with them.

There is a difficulty in how we define the intelligence, because the users, or customers, as they are called these days, of intelligence would look not at the raw intelligence but at the refined report that comes before a Minister and officials. That particular report could be mixed up and contain information that had been derived from the United States, from elsewhere, or from our own sources. It is not always clear to the reader exactly from where the intelligence has come.

When I was a young and green Minister of State, I had to deal with such issues and I read a report that was based on intelligence and other material that was not sensitive. The report of course was derived and refined from different sources. It was easy to forget which particular source a bit of information came from, and it could have been revealed unless one were very careful. It is a difficult issue. There is a real problem in defining precisely what foreign intelligence is.

As for the case of Gareth Williams, my hon. Friend made a valid point. Information that comes from other agencies does not necessarily have to be sensitive. If there is a case dealing with the duty of care for an employee, the Bill should not be used to block it, or to obstruct information when it could be used in a case that in no way threatens or jeopardises sensitive information or the intelligence of our country. That is why I think the provision is a bit sloppy and there is a real need for the Government to tighten up the clause in the terms set out not only by my hon. Friend but by the hon. Member for Edinburgh West, who referred to our own material being used in other parts of the world.

Jeremy Wright (Conservative, Kenilworth and Southam)

It is a great pleasure to serve under your chairmanship, Mr Crausby, and indeed to respond to the debate. I am grateful for the words of welcome from the hon. Member for Kingston upon Hull North. She was kind enough to say that she shared the same experience of moving from a non-speaking role to a speaking role. It worked out very well in her case; we shall see whether it works out quite so well in mine.

I want to deal with the hon. Lady’s amendments and the comments of other right hon. and hon. Members. I do not need to go into great detail about the background to the issue, to the Norwich Pharmacal case, which she set out very well, or indeed to the changes that resulted from the Binyam Mohamed case in 2008. As she explained, her amendments propose an absolute protection for information obtained or derived from intelligence information only where such intelligence information emanates from a foreign intelligence service. They seek to limit the protection afforded to information held by a domestic intelligence service to cases where the information relates to national security or the interests of the United Kingdom—she set out the reasons behind those proposals, as did the right hon. Member for Torfaen, to which I shall return. The protection for sensitive information relating to an intelligence service would be removed.

Before responding to the amendments in detail, it is worth my saying a little about why the Government have taken the approach they have to the reform of the jurisdiction in its application to sensitive information. As the hon. Lady said, the aim of a Norwich Pharmacal application is to force a third party, who is mixed up, however innocently, in the suspected wrongdoing of another, to disclose information that the claimant seeks in connection with another set of proceedings.

In seeking to legislate with these clauses, we will not affect anyone’s ancient common-law rights. Norwich Pharmacal relief is an equitable remedy that was developed in the intellectual property sphere, as the hon. Lady said, in 1974. It was first applied to sensitive national security material in 2008. Since then, there have been an increasing number of attempts to use that jurisdiction to seek the disclosure of sensitive information that belongs to the UK Government or that our allies have shared with us. It is worth pointing out that no other country permits disclosure of sensitive material in that way.

The hon. Lady asked me about the meaning of clause 14(7)(a), which:

“enables the Secretary of State to issue a certificate under subsection (3)(e) where the Secretary of State is B as it enables the Secretary of State to issue such a certificate where another person is B”.

I entirely understand why the hon. Lady does not find that immediately clear, but it ensures that the Secretary of State continues to have the ability to issue a certificate in cases where the Secretary of State is the respondent to those Norwich Pharmacal proceedings as well as when he or she is not. So there are circumstances in which the information being held might be held by the Secretary of State, and it would not be right to exclude the possibility of a certificate being issued in such cases.

As the sole purpose of such types of proceedings is to gain disclosure of material—this goes to the crux of the issue as far as Norwich Pharmacal is concerned—the Government do not have the option to withdraw from or seek to settle those proceedings. If a claim for public interest immunity is unsuccessful in relation to that material and the judge orders disclosure, there is no option but for the Government to release the sensitive information regardless of the consequential damage to national security or international relations. That is why, as I think all members of the Committee who have spoken have conceded, this is different from the cases that we have discussed so far and why our approach needs to be similarly different.

It is no exaggeration, of course, to say that the risk of disclosure of such material in a single case can have far-reaching and long-lasting implications for the national security and international relations of the UK well beyond that case. The Bill was therefore drafted in such a way as to provide the greatest possible certainty and clarity in the provisions for the protection of sensitive information. For information held by, originating from or relating to an intelligence service—the Security Service, the Secret Intelligence Service, GCHQ and military intelligence—the Bill removes the availability of Norwich Pharmacal relief. This approach is consistent with the approach in other legislation that has been passed by the UK Parliament, such as the Freedom of Information Act 2000 in which Parliament explicitly ruled out a right to access intelligence material.

The hon. Lady also asked about application to Scotland. She is right that there is currently no equivalent jurisdiction in Scotland as there is in England and Wales, and indeed in Northern Ireland, in connection with Norwich Pharmacal, but she will recognise that Norwich Pharmacal’s application to cases of this nature was an innovation, and what we seek to do is to ensure that no loophole is gained here for a different jurisdiction in the United Kingdom. So this is a pre-emptive measure—a precaution—and that is why that part of the Bill is there.

As has been well rehearsed and I think largely accepted, the novel application of Norwich Pharmacal to national security cases—in the Binyam Mohamed case and beyond—is eroding the confidence of our agents and our intelligence-sharing partners that we can protect the secrets that they share with us. In the case of human agents, there is the real concern of threat to life.

The hon. Member for Edinburgh West made the point that David Anderson has been well quoted in the Bill and I would hate to be left out, so perhaps I can be allowed one of his two. He said:

“The Green Paper accurately summarises both the limited reduction already seen in the flow of intelligence information from some US sources, and the possibility of a further reduction if it is perceived that information supplied in confidence might be released for other purposes.”

The fact that the Norwich Pharmacal jurisdiction has become applicable to cases involving national security sensitive information has resulted in an adverse impact on the UK’s intelligence-sharing relationships, which has real implications for the UK’s national security interests.

To quote someone else, also in relation to the JCHR—as the hon. Member for Edinburgh West will recognise— Sir Daniel Bethlehem, QC, said:

“What I do not doubt…is that a failure by HMG to be able to provide necessary reassurance on these matters to the UK’s intelligence partners would inevitably lead to a re-evaluation on their part of long-standing intelligence-sharing arrangements.”

The core issue associated with the Binyam Mohamed judgment is that it caused considerable doubt to creep into the heart of the PII process. The fact of the matter is that intelligence and similar relationships that hinge fundamentally on trust and reliability require greater certainty than the courts are now able to provide.

I am very grateful to the hon. Lady for what she said on that, which was that she supports the Government doing what is necessary to get every strand of necessary evidence, and, as she put it, to find every piece of the jigsaw. I accept that that is what every member of the Committee is seeking to do, but, as other Members have said, we must get that judgment right. That, of course, is where the hon. Lady’s amendments focus, so let me turn to them in detail.

I welcome the acceptance of the control principle as outlined in amendments 79 and 80. However, we do not believe that it is sensible to make amendments 78, 79 and 80, as there are inherent difficulties in identifying what qualifies as having been obtained from a foreign intelligence service as opposed to one of our own intelligence services. That is very much the point that the right hon. Member for Torfaen was making.

Those difficulties would lead to further uncertainty and, potentially, further litigation. For example, there may be correspondence between the Secret Intelligence Service and the Security Service commenting on foreign intelligence material, with consideration of the subsequent implications for counter-terrorist investigations or operations, which may then be passed on in a confidential briefing to the Foreign Secretary. It is difficult to separate what is information belonging to a foreign intelligence service and what is information belonging to one of our own services, so the amendments would lead to unwieldy and unnecessary litigious disputes as to what information falls within the exemption and what falls under the certification regime.

David Anderson discussed some of those practical difficulties in his evidence to the JCHR. He said:

“I suspect that there may be difficulties in distinguishing between intelligence derived from foreign sources and domestically derived intelligence, simply because in some respects intelligence gathering is so closely co-ordinated with that of other countries that it can be very difficult to disentangle the two.”

I think that that is very much what the right hon. Gentleman was saying. Although I appreciate that effort has been made in the amendments to avoid that sort of entanglement, I think that it will prove extremely difficult to disentangle those types of intelligence for the purposes that the hon. Lady seeks to achieve.

There is another point, too. The hon. Lady indicated that the Government may have unwittingly included information from domestic sources under the definition in clause 14. She is wrong about that. It is not unwitting at all; it is wholly deliberate. We simply do not believe as a matter of principle that it is right that foreign intelligence material should be afforded greater protection under these clauses than domestic intelligence material. That would be the consequence of her amendments.

Yes, providing reassurance to our intelligence-sharing partners abroad is a key objective behind these provisions, but it is not the only objective. It is vital that we provide equal protection to sensitive information gathered and generated by our own intelligence services. If such information were disclosed, the lives and safety of intelligence sources and intelligence officers, as well the effectiveness of the techniques they use to gather information, could be jeopardised. There would be a serious risk that elevating all aspects of foreign intelligence to be absolutely exempt without providing the same protection to domestic material could be interpreted by the courts as a signal from Parliament that domestic material warrants a lower degree of protection.

On amendment 78 specifically, the approach taken is not consistent, for example, with the approach taken in the Freedom of Information Act. That Act does not try to exclude the intelligence services from the operation of the Act only insofar as they hold information relating to national security or the interests of the United Kingdom; it excludes them from the Act as a whole. It does that in recognition of the fact that their entire function and raison d’être relates to national security and that therefore the information they hold is necessarily connected with that.

The Security Service Act 1989 and the Intelligence Services Act 1994 both make express provision that the heads of those organisations are to make arrangements to ensure that no information is obtained by their agency

“except so far as necessary for the proper discharge of its functions”.

Adding to that the qualifier

“where that information relates to national security or the interests of the United Kingdom”

would serve only to confuse the matter and would create further potential for more unnecessary litigation.

I understand that the thrust behind the amendment is to exclude from statutory protection information held by the agencies the disclosure of which would not be damaging to national security. The fact is that material sought from the intelligence services by Norwich Pharmacal applicants is material the disclosure of which would damage the interests of national security or international relations. Applicants in such cases are not seeking unclassified material from the Government. The hon. Lady gave two examples. One was a cleaner employed by G4S—or another contractor, of course—and working in the SIS building who injures themselves and wishes to seek redress. In such a circumstance, there would be nothing to prevent the cleaner from suing SIS, which could then decide, if it wished, to join G4S to the proceedings. The cleaner could obtain disclosure through the usual routes by doing exactly that.

The hon. Lady also raised the case of Gareth Williams. As far as that case is concerned, I agree with her and with the right hon. Member for Torfaen that it raises significant concerns. It would be odd if some action was not taken directly against the security services as an employer; action could also be taken directly against the Metropolitan police.

I understand the concerns raised about the breadth of the provisions, but it does not seem to me that if we pass the Bill as it stands we will be excluding the sort of applicants the hon. Lady mentioned from the type of relief that she described.

Diana Johnson (Labour, Kingston upon Hull North)

I am interested in what the Minister has said about the two examples I gave. He is obviously closing down the potential for various claims to be made by saying that a claim could be made directly to SIS or directly to the employer, in the case of Gareth Williams. However, that is not what the clause is about; it is about the control principle. That is what it is meant to deal with, not the other issues that the Minister is now trying to close down.

Jeremy Wright (Conservative, Kenilworth and Southam)

The clause is certainly partly about the control principle but the hon. Lady is absolutely right: the purpose of the Norwich Pharmacal jurisdiction is to allow people to get information that they need in order to pursue a third party. My point is that, in relation to the examples she gave, the Norwich Pharmacal jurisdiction would not be necessary; people can obtain that sort of information through other routes, so excluding people with those types of cases from the Norwich Pharmacal jurisdiction does not exclude them from the relief that they are seeking. That is the point; we are not excluding people from relief by doing what we are here proposing to do.

Examples of the information that we are seeking to protect are information that is derived from sensitive sources, information that might reveal sensitive techniques and capability, or information that is shared by a foreign intelligence partner. Disclosure of any material in those categories would cause damage to the UK’s national security, and, in turn, to international relations. Although, as I have said, we can see the rationale behind amendment 78, we do not believe that it is necessary or practical. It would allow uncertainty to remain in this area of law and could open up more avenues for challenge by litigation, which would divert our security and intelligence services from their front-line duties or from protecting the public.

Amendment 81 would remove clause 14(3)(d), which contains the protection for sensitive information relating to an intelligence service. That would create vulnerabilities: that category of information would include information held by other Government Departments, as the hon. Lady said, relating to operations and investigations, as well as other information. The hon. Member for Edinburgh West asked me to be specific about the kinds of information we would be talking about here. It could include threat assessments in relation to sabotage, espionage and terrorism; assessments of vulnerabilities in critical national infrastructure or systems; military plans; weapons systems; and information on the development or proliferation of nuclear weapons overseas. Work done in other Government Departments on national security policy and intelligence policy would also not be protected if clause 14(3)(d) were removed.

Other information that the protection might apply to would be work done in the Cabinet Office, Home Office or Foreign Office on the funding, capabilities and staffing of the intelligence services held by other Government Departments. The hon. Lady, and I am sure the rest of the Committee, will see why it would be desirable to protect that type of information. The amendment would leave all these types of information without statutory protection.

Michael Crockart (Liberal Democrat, Edinburgh West)

I accept what the Minister is saying about the definition used in the amendments by the Labour party, but all the types of information he is talking about would be covered by the definition used by the ISC, which is my point. Perhaps he can deal with that directly.

Jeremy Wright (Conservative, Kenilworth and Southam)

The point, I think, is about information that is not held by the agencies themselves, but by others, that relates to the agencies. That is why the provision is included in the Bill. It would not be covered by the ISC’s definition, and that is the point. The disclosure of this information would be damaging to the intelligence services’ operations and to the interests of the United Kingdom’s national security. It should therefore remain within the definition of sensitive information exempt from disclosure.

In conclusion, I reiterate that Norwich Pharmacal has nothing whatever to do with allegations of wrongdoing by the UK Government or our intelligence services. The Bill does not take away any right to bring a claim against the Government. If someone has evidence that the UK Government or intelligence services have been directly involved in wrongdoing, they can still bring a claim against the Government. If someone believes their convention rights have been infringed, they can still seek to enforce them. If there is evidence of a criminal offence on which the UK courts have jurisdiction, that can be referred to the police. Where disclosure of information—this is the point that my hon. Friend the Member for Bromley and Chislehurst was making—to a person who may have no connection to the UK and who has thought or is thinking about proceedings involving a party that is not the UK Government would harm our vital interests of national security or international relations, that is unacceptable.

We must recall that these types of proceedings affect only a very small number of individuals but have a disproportionate effect on our national security and international relations. If we do not legislate in a way that provides sufficient clarity, our intelligence-sharing relationships stand at risk of deteriorating well beyond the point of restrictions that were placed on us in 2008. I hope that the Committee will forgive me for outlining those arguments in some depth, but I have explained, I hope, why the Government resist these amendments. On that basis, I invite the hon. Lady to withdraw her amendment.

David Crausby (Labour, Bolton North East)

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

Amendment 79, in clause 14, page 11, line 15, leave out ‘an’ and insert ‘a foreign’.

Amendment 80, in clause 14, page 11, line 17, leave out ‘an’ and insert ‘a foreign’.

Amendment 81, in clause 14, page 11, line 18, leave out paragraph (d).

Diana Johnson (Labour, Kingston upon Hull North)

I welcome you back to the Committee after our short break, Mr Crausby. It was interesting to hear what the Under-Secretary of State for Justice, the hon. Member for Kenilworth and Southam, had to say. I think he moved from a non-speaking part to a speaking part very well. Clearly, I did not agree with everything he said, but I thought he put it very well. I look forward to seeing whether the hon. Member for Edinburgh West will table some amendments on Report to represent his view. I am not sure whether it is his view alone or one that he shares with other Liberal Democrats or the coalition Government. My right hon. Friend the Member for Torfaen talked with vast knowledge and experience on the subject. I found it difficult to believe that he was ever a green Minister of State; I am sure he was accomplished from the start.

After listening carefully to the Minister, I still have concerns about clause 14. It must deal with the control principle and the relationship we have with our allies and countries that provide intelligence to us, and I am still concerned that it is too widely drafted. I want to test the Committee’s opinion on amendment 78, but I will reserve the Opposition’s position on amendments 79 to 81 and we might return to the matter on Report.

Clause 15 - Review of certification

Diana Johnson (Labour, Kingston upon Hull North)

Clause 15 provides a review procedure for the Secretary of State using the certificate procedure under clause 14(3)(e). Clause 15(3) states that in looking at the matter, the court

“must apply the principles which would be applied in judicial review proceedings.”

In light of the comments that have been made recently by the Lord Chancellor on judicial review proceedings, I wondered if there was anything the Committee needs to be aware of in terms of changes to judicial review that might have an impact on this particular proceeding.

Jeremy Wright (Conservative, Kenilworth and Southam)

I am grateful for the hon. Lady’s remarks. I do not think that what the Secretary of State for Justice was saying would have any direct bearing at all on the principles that are applied by the courts when they consider judicial review proceedings. We are concerned about the extent of judicial review proceedings, but that is a different matter. In relation to this, it would not have a direct effect on our deliberations. The hon. Lady is right that clause 15 proposes that the courts can review the application of judicial review principles, and review the Secretary of State’s decision that the disclosure of the material would damage national security or international relations. Of course if such an application were successful, the prohibition on the court ordering disclosure of the information referred to in the certificate would not apply, and disclosure could therefore be ordered under the court’s usual residual disclosure jurisdiction. In conclusion, on this clause I would simply say that we believe it is sensible to have that review available. Clause 15 sets it out, and I commend the clause to the Committee.

Schedule 2 - Consequential provision

Schedule 3 - Transitional provision

Clause 17 - Commencement, extent and short title

New Clause 5 - Review and revocation of declaration under section 6

New Clause 1 - Reporting and review

Julian Huppert (Liberal Democrat, Cambridge)

I beg to move, That the clause be read a Second time.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

New clause 2—Annual renewal—

‘(1) The Secretary of State’s powers under Part 2 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under Part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.

(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.

New clause 11—Expiry and renewal—

‘(1) The Secretary of State’s powers under sections 6 to 11 of this Act expire at the end of the period of one year beginning with the day on which this Act is passed.

(2) The Secretary of State may, by order made by statutory instrument, provide that the Secretary of State’s powers under part 2 of this Act are not to expire at the time when they would otherwise expire under subsection (1) or in accordance with an order under this subsection but are to continue in force after that time for a period not exceeding one year.

(3) An order under this section may not be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.’.

New clause 12—Reporting and review—

‘(1) As soon as reasonably practicable after the end of every three month period the Secretary of State must—

(a) prepare a report about his exercise of the powers conferred on him, and the exercise of the powers and rights conferred on others, under clauses 6 to 11 of this Act during that period; and

(b) lay a copy of that report before Parliament.

(2) The person appointed by the Secretary of State to review the operation of the provision of the Terrorism Act 2000 and part 1 of the Terrorism Act 2006 must also carry out an annual review of the operation of the provisions of this part of this Act.’.

Julian Huppert (Liberal Democrat, Cambridge)

Thank you very much, Mr Crausby, it is a pleasure to serve again under your Chairmanship. I do not intend to detain the Committee very long with the details; I suspect they are relatively self-explanatory and I hope that we will have a constructive response from the Government on these issues.

Essentially, the new clauses derive in their entirety from the Joint Committee on Human Rights’ report where the independent reviewer, who has been quoted so often, made it very clear that he was in favour of the principle of annual review by an independent reviewer, not least with what he described as the danger of “creep”. There is a lovely quote from him:

“A procedure that is introduced in a small way ends up being used quite a lot or a procedure that is introduced as one procedure then crosses the species barrier into another type of procedure and, before you know where you are, it is all around.”

We have seen this happen with a whole range of legislation in the past, particularly some of the huge panoply of counter-terror legislation brought in by the party opposite. As we all know, it ended up with someone being removed from their conference under it.

These new clauses would implement what is recommended by the Joint Committee on Human Rights, so new clause 1 would require a report on how the powers are being used. This is very important because we do not yet know exactly how many cases might be covered and we do not know what sort of rare events or exceptions might happen. It is important that there is that clarity and reporting so that Parliament can have a look. We all make errors when legislating; all Governments will always get things slightly wrong as things work out and as unexpected events happen. It would be helpful to monitor what is happening so that we can see if it is working as the Government and Opposition intended. If it is not, I want to make sure that we know that it is not, and that we have the opportunity on an early occasion to try to correct that.

New clause 1 would say that all of the powers in (1)(b) should be reported. The text taken from the Joint Committee on Human Rights suggests that that should be done every three months. If the Government wish to have a different time period, I am relatively relaxed about the exact time period; I do not want this to be overly onerous. The principle should be that the Government need to make those reports and lay them before Parliament.

In particular, we want the independent reviewer to review the powers every year, so that he can provide his detailed expertise to assess if they are working as intended, or things are going wrong that Parliament should be alerted to and should have a look at. That is what new clause 1 would do, and I hope that the Government will be able to accept the reasoning behind it, and be helpful.

Before I move on to new clause 2, I should compare and contrast new clause 1, which my hon. Friend, the Member for Edinburgh West, and I tabled before Christmas, with the rather similar new clause 12 that was tabled by the hon. Member for Hammersmith a couple of weeks ago. The only difference between the two, at least that I can see, is which sections we are referring to. I hope that the hon. Gentleman will accept that we are looking slightly more broadly, but we are particularly looking at some of the concerns that my hon. Friend has already raised about some of the Norwich Pharmacal conditions. They are what they are at the moment, and we will have to see what sort of constraints the Joint Committee on Human Rights might recommend we make. They should also be subject to review in case anything is going wrong, independently of how that might be changed in the future.

Diana Johnson (Labour, Kingston upon Hull North)

I am interested that the hon. Gentleman talked about Norwich Pharmacal. I put it to him that surely one of the aims of the provisions in clause 14 is to provide certainty to foreign states when they provide intelligence. If there is a possibility that in the future that might change, is that not defeating the object of clause 14?

Julian Huppert (Liberal Democrat, Cambridge)

The hon. Lady will be aware that one cannot provide absolute certainty because Parliament can, at any time, legislate to change things. Reporting on how it is working is not saying that it would automatically be dropped, and I will get on to sunset clauses in a moment. However, there is no way that this Parliament can give complete certainty to anybody that the law in this country will never be changed in the future. I am sure the hon. Lady realises that and fully accepts it. One of the principles about a review, and reporting on how a provision is being used, is that we may discover that we have not provided sufficient protection. I find it hard to imagine how that would be, but I hope that she would agree with the principle that we should know how legislation that we have passed is being operated in reality—what happens when it gets out into the wild. New clauses 1 and 12 are similar, but ours goes that slight step further and says that we want to know how things that we pass are progressing.

New clause 2 deals with annual renewal and is, again, remarkably similar to new clause 11, tabled some time earlier. Sunset clauses were a fairly standard thing that was accepted by the previous Government on a number of occasions for some of the rather extraordinary legislation that they introduced. We, as Parliament, should have the opportunity not just to wait until there happens to be time in the parliamentary schedule to remove something we feel is no longer necessary, but to update the legislation annually. The Conservative party argued for that on a number of occasions when it was in opposition. The Opposition, presumably, agree with it because they have tabled new clause 12. Therefore, the only real debate is how frequently there should be such a sunset and exactly what should be covered.

I have the same disagreement, I suspect, that the hon. Member for Kingston upon Hull North has. New clause 2, which was recommended by the Joint Committee on Human Rights, would cover the entirety of part 2, whereas new clause 12, which was tabled by the hon. Member for Hammersmith, would cover merely the closed material procedure and would not apply any more broadly than that. Interestingly, new clause 12 would also not apply to clauses 12 and 13, which deal with changes in CMP for immigration and employment purposes. I dare say that at some point, we will hear the reasons for why that is. Otherwise, the new clauses are fairly similar.

What we are proposing is the sort of thing Governments tend to make available and often concede in order to get legislation through. I hope that the Government will look at the proposals seriously and take steps towards the proposals from the Joint Committee on Human Rights. I am happy to work with the Government on the subject. New clause 2 suggests a one-year sunset clause. I had a conversation with the Home Secretary regarding the legislation on terrorism prevention and investigation measures, which ended up with a five-year sunset clause. There is a range of numbers between one year and five years that could be considered.

If we are going to do something exceptional, it is important that we check that we are doing it and have a discussion about whether we are going the right way, or whether things are going in an unintended direction. I hope that the Government will look seriously at the proposal, and I look forward to hearing the opinion of other members of the Committee.

Andrew Slaughter (Labour, Hammersmith)

I will speak to my new clauses as well as those tabled by the hon. Member for Cambridge. He is renowned for his brevity and taciturnity, and I wish I could emulate him; I will do my best.

It is no surprise that there are some similarities between our new clauses and those tabled by the hon. Gentleman, because they are cribbed almost entirely from the recommendations of the Joint Committee on Human Rights. To be precise, the differences are as follows.

Our new clauses refer specifically to the clauses relating to CMPs in civil proceedings, whereas those tabled by the Liberal Democrats refer to the whole of part 2. We wanted to make that distinction partly for the reasons given by the Minister without Portfolio, in his response to the Joint Committee last week.

As my hon. Friend the Member for Kingston upon Hull North said, we do not approach Norwich Pharmacal in the way that the Liberal Democrats appear to promote. I am yet again confused, because, having said that they share the concerns of the Joint Committee, they did not vote for our amendment, which would have gone part of the way—not all of it—towards meeting those concerns. No doubt we will find out at some point, by reading Twitter or blogs, what the spin on that is.

Julian Huppert (Liberal Democrat, Cambridge)

Can the hon. Gentleman point to where his amendment was recommended in the report by the Joint Committee on Human Rights?

Andrew Slaughter (Labour, Hammersmith)

If there were concerns regarding the way in which the attack on Norwich Pharmacal jurisdiction is phrased in the Bill at the moment, one would have thought that our amendments, as far as they met the concerns, would be supported.

It appears from their sunset clauses and review procedures that the Liberal Democrats wish for a three-monthly or annual process of unpicking Norwich Pharmacal jurisdiction, which, as the Minister without Portfolio said, would create exactly the uncertainty that the provisions in the Bill are designed to correct. However, that is a matter for them. It explains why we differentiated our new clauses in that way.

James Brokenshire (Conservative, Old Bexley and Sidcup)

I accept the hon. Gentleman’s points about uncertainty, but does he equally accept that his own new clause creates huge uncertainty for the court? Litigation may be ongoing without any certainty that that procedure will be able to continue.

Andrew Slaughter (Labour, Hammersmith)

That, of course, was the point made by the noble Lord Wallace of Tankerness in the other place. The answer is in two parts. Partly it is what the hon. Member for Cambridge has said, which is that if the Government do not like the detail—the regularity of review—they are welcome to propose their own alternative to that. The central point—this is where I suspect we will disagree—is how severe this change in civil procedure rules and civil law is. It will require the ultimate in parliamentary scrutiny, and that will be the essence of my submission now.

To finish the point that I was making, the other difference between the new clauses, at least in relation to new clause 12, is the insertion of the phrase “rights conferred on others”. I am grateful to Professor McNamara for highlighting that in the brief that he gave to the Committee. He states:

“This falls short of what is needed for transparency because it is not only the Secretary of State that has powers under the Bill. Other Secretaries of State may seek closed proceedings, as may parties, and (depending on the final form of the Bill) there may be applications to intervene.”

Julian Huppert (Liberal Democrat, Cambridge)

I apologise for not addressing that point in my remarks. That was an error on my part. The concern that I have is how the Secretary of State could in reality do that. I can see the intention, but given that we have established that there are routes for other parties to make applications, would the Secretary of State necessarily be able to do that? It would be great if they could, but I am a little concerned that it might not be possible.

Andrew Slaughter (Labour, Hammersmith)

No doubt the Minister will say that it is impractical. This is a lacuna that allows an opportunity for the review not to take place in a thorough way. The hon. Gentleman has a reasonable point, but if the principle of the review is accepted, which I hope it is, it is a matter for the Government to define how that will be accomplished.

Those are the only significant differences between the various new clauses tabled by the Liberal Democrats and Labour Members. We say that reviews are necessary and we disagree with what the Minister without Portfolio said in general. In response to the Joint Committee on Human Rights last week, he said that there was a provision for a review, anyway, because there was now a process for a post-legislative review, which the Select Committee would undertake. I have no doubt the Select Committee will be assiduous in that review, but I do not think that that exonerates the Government from having their own process.

The Government say that there is a distinction between this Bill and legislation such as the Terrorist Asset-Freezing etc. Act 2010 and TPIMS, where there is a report to Parliament on a quarterly basis and which are reviewed by the independent reviewer. They seek to make a distinction between individuals and processes. That is a distinction without a difference, in my submission. We are talking about fundamental changes to law and therefore it is right, at least for the foreseeable future, that the process of review and renewal by Parliament takes place. It is not a cumbersome process. It allows for the provisions to be extended simply by a vote if there are no greater concerns. Only if the House had real concerns would the matter be reopened and debated in full. I do not see it as bureaucratic and I do not think that it is cumbersome. I do not see it as interfering with due process. If the Minister has concerns that the time limits are too short, he is welcome to propose longer time limits. The principle of keeping such a fundamental change—something that so fundamentally attacks basic principles of civil law—under review is unarguable.

The final reason why I will press these new clauses is the same reason why I urge the Government to reflect on this matter between now and Report and Third Reading. I do not know whether they have a date in mind for Report and Third Reading. I assume it will not be next week, so it will probably be after the short recess. After the hasty and rushed fashion in which Second Reading was dealt with before Christmas—the Government are obviously in terror of their lordships—who knows what they are planning? I hope that it will be after the recess, because I hope that they table a sunset clause and use that short period of time to review where we are with the Bill.

The Joint Committee is discussing its further considerations. It may already have written to the Minister in response to the Minister without Portfolio’s document that was published last week. I think, given the close attention the Joint Committee has paid to this issue, we would value its view on the hasty but fundamental changes that the Government have introduced in Committee. When the Minister responds, he might want to tell us whether he has already been approached by the Joint Committee. If he has not, I hope that he will solicit its views and take them on board. That will not be done quickly.

The Minister might also want to seek a judicial review. Notwithstanding the quite correct attempts at preventing me from quoting at length the views of the Supreme Court, those views are relevant and no doubt the Minister is familiar with them. The judiciary has taken a very close interest in this matter. Indeed, we would not be here were it not for the Supreme Court’s decision in the al-Rawi case. Therefore, its views should also be solicited.

I and my colleagues am unhappy about the way the amendments were brought forward at a late stage in the Committee process. The Bill has a chequered history. I am not just talking about the procedural irregularities—the promise of a White Paper that was never delivered, the stages that were rushed through and fundamental amendments being introduced at the last stage. I am far from clear what the view is of either part of the Government, let alone both parts of the Government working together, in relation to the Bill. Therefore, if the Bill is enacted in its current form or something close to its current form—obviously it has several stages to go through—it is important that there is a review process and regular parliamentary oversight.

In summary, the Government’s position, if my submissions of the past two weeks have been correct, is to roll back the process effectively to where we were when the Bill was introduced in the House of Lords. That is to say, the Government were happy with the Bill after they made the three post-Green Paper changes about national security, inquests and judicial review. I think the Minister would agree with that. Indeed, the hon. Member for Cambridge was happy with the Bill at that stage because he published his famous press release welcoming it as a victory for open justice. At that stage at least—let us treasure that moment—the Government were on all fours with themselves and supported the Bill as amended. But then amendments were made in the Lords, which were apparently accepted on Second Reading in the Commons. We now have a wholesale change to that approach.

The Government made those changes in a hurry and in a way that left a number of people confused—that might have been their intention—about where they are going with the Bill. That is a recipe for bad legislation. If it is bad legislation and there has been no opportunity for those issues to be aired, further advice needs to be taken. After the Bill is passed, it needs to be regularly reviewed. I say that also in relation to the Liberal Democrats. It might be that, out of the generosity of his heart, the Minister has been jumping through hoops to help his coalition partners. If so, given their voting behaviour on the amendments, he has a thankless child.

I am genuinely confused. I hope that matters will be clarified when we discuss the Bill on Report and on Third Reading, so we will know where the Liberal Democrats stand. We have had a good debate. We have all valued the contributions from the hon. Members for Cambridge and for Edinburgh, West, and the erudition and intellect that they have brought to our discussions. However, a little more clarity would have been sensible.

The latest pronouncement from the hon. Member for Cambridge stated:

“Mike Crockart and I just called a vote to remove secret courts from the Justice and Security Bill, in line with Conference’s motion.

Despite highlighting in the debate that they supported closed proceedings in principle, Labour saw an opportunity to make mischief and eventually backed us. But due to DUP support for the Tories, we lost 10-9.

I’ll give a fuller update to everyone concerned soon.”

I await that fuller update to see what new magic is drawn down from the ether, and what other strange things are happening in this Room that I do not observe. It is nice that we are used to the virtual world now, but it seems that we have a virtual world in the sense both of it being online, and of it bearing no resemblance to the real world.

Julian Huppert (Liberal Democrat, Cambridge)

The hon. Gentleman keeps citing our tweets. I welcome him into the modern age. Yet again, which bit of that tweet did he think was not correct?

Andrew Slaughter (Labour, Hammersmith)

Let me tell the hon. Gentleman. I am not at all clear that what happened in Committee was a wholesale rejection of CMP procedure. However, if that were so, I look forward to the Liberal Democrats tabling amendments on Report that mirror the words of the motion passed at their conference or, at the very least, that would fully, not partially, restore, the safeguards introduced by the House of Lords. I am describing the disparity between what Liberal Democrats do and what they say they do, but when they do something and want it to mean whatever they think that it should mean, we really are in a virtual world.

Michael Crockart (Liberal Democrat, Edinburgh West)

In the interests of accuracy, since the hon. Gentleman is so interested in Twitter accounts, he tweeted yesterday:

“Just finished Secret Courts Bill. Lib Dems voted with us 7 times in Committee”.

Was it not actually the case that it was the Opposition who voted with us a number of times?

Andrew Slaughter (Labour, Hammersmith)

I think that even I am bored with this now.

David Evennett (Conservative, Bexleyheath and Crayford)

“In conclusion”!

Andrew Slaughter (Labour, Hammersmith)

In conclusion, I hope that we have been clear throughout our proceedings. We have a clearly stated position. It is a position that we shall maintain, and I look forward at least to having support for that position. I am grateful for the support of the hon. Member for Cambridge for amendment 55. I will leave him alone now, and let him continue the debate with the Liberal Democrat party.

On the serious matter of presenting a Bill that is fit for purpose, I hope that at the very least we will be able to sustain the amendments tabled by their lordships. It has been an erudite and clear debate. Such amendments are supported by the senior judiciary in the country as well as the Joint Committee on Human Rights, and I hope that that will be the way forward.

Even the Minister must have had relatively little time to get to grips with his amendments, nevertheless he has done an admirable job. I hope that when he reflects on them, he will think again about matters so that, when we and their lordships discuss the Bill again, harmony breaks out on all sides and we end up with something that protects national security. Insofar as it attacks basic principles of English common law, it must have sufficient safeguards to ensure that closed material procedures are the exception to the rule and that, when they are used, they are so closely constrained that we can be sure that they are the only option that is available.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Let it not be said that anything that the hon. Gentleman has said has ever been hasty or rushed during this Committee, nor has the Government’s approach in considering the amendments. I shall concentrate my comments on the new clauses in the group, rather than straying into a broader Second Reading-type debate. My hon. Friend the Member for Cambridge exhorted me to come up with a constructive response. I hope he felt that my contributions in other debates were constructive, thoughtful and of assistance. I will do my best to consider carefully the points raised.

In essence, the amendments touch on three separate issues: reporting, review and renewal. They have been structured in that manner. Members have sought to draw parallels with other legislation: we had annual debates on control orders and the Terrorism Prevention and Investigation Measures Act 2011 obviously provides certain measures. I caution right hon. and hon. Members against drawing a parallel with such legislation; the control orders were against particular individuals and were maintained over a period of time, whereas we are talking about a court process—a litigation process. Direct parallels cannot therefore be drawn in the way that they perhaps have been.

I recognise the issues being flagged, but the points about certainty are germane. In the context of the Norwich Pharmacal jurisdiction, we seek to give assurance that that deals with a case law process that has developed and it has been dealt with. Similarly, with CMPs, we are talking about litigation against the Government, for example, for which a CMP has been sought and obtained, and yet, if the amendments are taken at face value, there would not be certainty in the litigation. Someone might initiate a CMP and a court case may be proceeding, but if it does not get renewed at the annual renewal, all the litigation is thrown into question.

Although I understand the concern about how the provisions would be applied in practice, and therefore the need for further assurance and information and the need to examine the provisions, there are particular challenges if we go down some sort of annual renewal route. Some of the debates we had on control orders became rather meaningless, because an annual debate on a control order in that environment did not add anything: it was almost perfunctory and did not apply scrutiny in any event.

Yes, in the example I gave about the TPIMs Act, we took a different approach, but I question the read-across from that to another situation. I understand what one might characterise as the anxiety about how the measure will operate in practice and the desire to look for further assurance.

Julian Huppert (Liberal Democrat, Cambridge)

The Minister is right that the annual debates on control orders were in many cases fairly unsatisfactory, but does he agree that they ensured that Parliament was aware that it was doing something exceptional and abnormal and that that was one of the things that led to our coalition Government getting rid of control orders and replacing them with TPIMs, which are a significantly lesser step?

James Brokenshire (Conservative, Old Bexley and Sidcup)

My hon. Friend will remember the debates we had on the TPIMs Act and the points made in that environment about ensuring that there was an informed approach. All I am saying is that because we are talking about a different scenario, which involves litigation, court process and dealing with case law issues about putting evidence into a court process, I do not think that there is a read-across when it comes to sunsetting or renewal. That parallel cannot be drawn in the same way as it might be in other examples, albeit that I understand the anxiety that underpins my hon. Friend’s point and the point that the hon. Member for Hammersmith raised.

The new clauses would, for example, require the Secretary of State to

“prepare a report about his exercise of the powers conferred on him, and the exercise of the powers and rights conferred on others.”

We anticipate that CMPs will be used so infrequently that there may not be any matters to report on a quarterly basis. The point has been raised that the new clauses are about the principle rather than the detail of the proposals. There are existing mechanisms by which the courts publish their open judgments, and the Government made an amendment in the Lords to ensure that where an application is made under clause 6(1), that fact must be reported to the other parties in the proceedings. The existing mechanisms of accountability should be sufficient.

The new clauses also seek to add a review of the operation of the provisions in part 2: CMPs and Norwich Pharmacal. I have concerns about how practical such a proposal might be, given that the independent reviewer’s remit has already been extended on several occasions. The incumbent, David Anderson QC, has indicated that there is a limit to how much one person can do, and we must not dilute the effectiveness of his role by overburdening him.

Not withstanding that, I recognise, value and appreciate the contribution that David Anderson has made to the debate on CMPs. Nothing prevents him or any future post holder from being asked to provide ad-hoc reports on CMPs, Norwich Pharmacal proceedings or national security material, or being invited by Parliament to give his opinions.

There are arguments over the benefits of reporting and review requirements, but annual renewal would have far more serious implications. New clause 2 would provide that the Secretary of State’s powers under part 2 would expire only a year after Royal Assent unless a statutory instrument was laid and approved by a resolution of Parliament. The Government believe that new clause 2 would largely negate the benefit of part 2. In the case of Norwich Pharmacal, we seek to address the key problem of how to reassure our intelligence-sharing partners that we can protect the information that they share with us in confidence. A time-limited protection would fundamentally undermine one of the key objectives of legislating, because we would not be able to provide the necessary reassurance if we have legislated only for a period that may be as short as one year. If the legislation does not provide sufficient clarity and assurance, our intelligence-sharing relationships risk deteriorating well beyond the point of the restrictions placed on us since 2008, and our allies would doubt our continuing ability to keep material safe. There are, therefore, limitations on what can be achieved, although I acknowledge the point about sensitivity.

The measures in clauses 14 and 15 remain the only comprehensive safeguard against the serious damage that Norwich Pharmacal relief poses to our national security and international relations, and they are designed to be a permanent solution to a problematic issue that has arisen, not a short-term measure. Creating the possibility that CMPs would cease to be available halfway through a case in which the judge had decided that a CMP was in the interests of the fair and effective administration of justice would undermine the judge’s discretion, and it would be a recipe for chaos in the courts.

In the case of challenges to the Home Secretary’s decision to refuse someone British citizenship or to exclude them from the UK, we are dealing with a category of cases where the court has found that it is potentially fairer to the claimant for there to be a CMP available. The expiry of the relevant clauses would reduce fairness by removing the ability effectively to challenge those decisions. The proposals for annual renewal appear to be drawn from the Terrorism Prevention and Investigation Measures Act 2011. As I have said, I think there are limitations and challenges to how that read-across operates in practice.

It is also important to note that the Constitution Committee did not recommend a sunset clause in its report. It said that the House may wish to consider the Bill being independently reviewed—not renewed—five years after it comes into force. As previously explained, Bills are normally subject to review three to five years after Royal Assent. The normal practice is that the Select Committee will have responsibility there.

I have said that I will be constructive, and I recognise the anxiety that has been expressed in certain quarters of this Committee and by those outside, so I am persuaded that it would be helpful to provide reassurance on how the CMP provisions will be used. For the reasons that I have explained, I do not feel that the new clauses quite work. I therefore hope that my hon. Friend the Member for Cambridge will feel minded to withdraw his new clause. I assure him that the Government will reflect on the subject of reporting and review and will return on Report with a suitable amendment.

I recognise the points made, throughout our deliberations, about information and how reviews should take place, and I respect them; they have been made not only by my hon. Friends the Members for Cambridge and for Edinburgh West, but by the Opposition. I assure the Committee that the Government will reflect on this debate and others that have taken place in the House and come forward on Report with alternative proposals.

Julian Huppert (Liberal Democrat, Cambridge)

I thank the Minister for everything he has said—in particular, his commitment that the Government will come up with appropriate amendments on reporting and review, which is welcome and will assuage me. I thank him for his concession. I look forward to seeing those amendments, and I hope they will comply with the thrust of what the Joint Committee on Human Rights was trying to achieve.

As I have said, the exact time scales should be set on a practical basis. I hope that we will have the chance to talk about some of that, and I hope that the Government’s amendments will be ones that we can entirely agree with. Given that the Minister will essentially be accepting the principles of new clause 1, I do not feel the need to test the Committee’s view on it.

On new clause 2, which would create an annual renewal, I understand and appreciate the Minister’s concerns about the detail of how that could work. He is right that there will need to be some provision to deal with an ongoing case, when one period ended. There is also the issue of Norwich Pharmacal and whether one would want to offer protection over information that had been provided up to the point of repeal or when the powers ended.

The Minister is absolutely right to say that one could construct a far more detailed amendment that would achieve in detail what I want to achieve in principle through new clause 2. I accept that he is reluctant to provide that, but I want to test the Committee’s opinion on the principle of annual renewal.

I give a big thanks to the Minister for agreeing on reporting and review; that will make a significant difference to many people. I accept that he will not want to support the annual renewal, but I hope he will reflect on a way forward, which I am sure his draftspeople will be able to provide.

The Government have had significantly over a month to look at the matter; I have had conversations with the Minister without Portfolio. I will test the Committee’s opinion on new clause 2, but I will not press new clause 1 to a Division. I beg to ask leave to withdraw the motion.

New Clause 2 - Annual renewal

New Clause 11 - Expiry and renewal

New Clause 12 - Reporting and review

Andrew Slaughter (Labour, Hammersmith)

I beg to move, That the clause be read a Second time. Given the helpful comments from the Minister and in light of what the hon. Member for Cambridge has said, I beg to ask leave to withdraw the motion.

James Brokenshire (Conservative, Old Bexley and Sidcup)

On a point of order, Mr Crausby. May I thank you and your co-Chair, Mr Gray, for your expert chairmanship of the Committee? I am sure we can all agree that the Bill has been well scrutinised by the Committee, and that we have had some informative and useful debates. The fact that we have done so in a timely and efficient fashion that has enabled us to finish early is a credit to our two Chairmen, to the usual channels and to all members of the Committee.

We have certainly learned some interesting new facts and been referred to some interesting new concepts. Two immediately spring to mind. I am not sure that all of us would necessarily have been fully familiar with the Osmotherly rules at the outset—or, indeed, had a detailed association with or affection for the Wiley balancing test. I will leave it to the passage of time—or perhaps the Hansard reporters—to tell whether, in due course, our considerations will lead to any Brokenshire requirements, rights and certificates, any Johnson amendments, or, dare I say it, any Slaughter quotations.

Our debates have been informed by the expert knowledge around the Committee Room. When we debated the issue of oversight of the Intelligence and Security Committee, the contributions of my hon. Friend the Member for New Forest East and of the right hon. Member for Torfaen were invaluable. They have greatly assisted the Committee by enabling us to consider a number of points raised by the Bill with the benefit of their outside experience, knowledge and input. I am quite clear that our consideration has been added to and aided as a result of their contributions.

I am also grateful for the legal input from Government and Opposition Committee members and the legal expertise that has been shown. A number of the issues we have considered have been legal points about how courts operate and the jurisprudence that has been developed. We also had input from a member of the Joint Committee on Human Rights, to ensure that that aspect of our consideration was properly informed.

I thank my hon. Friends for all the support they have provided to me and my hon. Friend the Member for Kenilworth and Southam, whom I congratulate on his first speaking part on a Bill as a Minister—before he exits Committee Room right. I thank him for his support. I am sure that his first outing in this particular context will not be his last.

I also thank my hon. Friend the Member for Bexleyheath and Crayford; as a Whip, he has shown steely nerve and fingertip control, which has been absolutely masterful. I am also grateful for the sterling support provided by my hon. Friend the Member for Ilford North, who has acted as PPS, and for the additional support provided by my hon. Friend the Member for Weaver Vale.

I thank the Opposition for the tone and manner in which they have challenged and scrutinised the Bill. Bill Committees do not necessarily always have that tone, but although we have disagreed on a number of points, the analysis and detailed approach of the Opposition Front-Bench team and other Opposition Committee members have aided and assisted our consideration.

I thank the Bill team and parliamentary counsel for their expert input, as well as for being able to read my handwritten scribbles—a task that I know has at times been testing. I thank you, Mr Crausby, and your co-Chair, Mr Gray, for your sterling and clear chairing of our sessions. I also thank the Clerks, the Hansard reporters and the Doorkeepers for their contribution to ensuring the smooth running of our proceedings.

The Bill has been improved by this Committee’s scrutiny. The Government have reflected on proceedings in the other place and will reflect on some of the points made in the Committee’s deliberations between now and Report. Ultimately, this important Bill will improve parliamentary and independent oversight of the security and intelligence agencies, protect our highly important intelligence-sharing relationships and allow more cases involving intelligence to be heard.

The Bill is about more justice, not less, and I look forward to underlining that core point during the remaining stages of our consideration and as the Bill progresses to the Floor of the House.

Andrew Slaughter (Labour, Hammersmith)

Further to that point of order, Mr Crausby. I echo everything that the Minister said in paying tribute to those who have contributed to making this a good Committee—beginning with you and your co-Chair, Mr Gray, who have been firm but fair throughout the proceedings. I know that you and Mr Gray would have loved to hear more of what the nine justices said in the Supreme Court case of al-Rawi, but we had to curtail that. I know that having had a taster, all Committee members will rush away to read the full judgment.

Having mildly embarrassed the Clerk earlier, I do not want to do so again, but I thank him for his support in the run-up to the Bill, as well as during our proceedings. It is amazing how much one forgets between Bills about what procedures need to be followed. As always, we have had an absolutely sterling effort from everybody who has helped, including the Doorkeepers and Committee staff. It has been a formidable effort.

I have sometimes found previously—I am sure it has had nothing to do with me—that when I thank Ministers or they thank me, it is the most difficult part of the Committee. However, that is far from being the case on this occasion. I can say genuinely that having two Ministers who are so emollient in how they say things, even if not in what they say, is a refreshing experience. I thank all Government Committee members, including the Liberal Democrats, who are part of the Government, we must remember—or they must remember, or somebody must remember. We have heard an interesting range of opinions.

When my hon. Friend the Member for Kingston upon Hull North was dealing with the Intelligence and Security Committee provisions, I thought at one stage that she was getting it not in stereo but five ways. She was getting a Front-Bench Government view, a Liberal Democrat view, a Back-Bench Government view, a view from the ISC in stereo from both sides and occasionally other views as well. She dealt with them admirably. As the privilege of making the final remarks falls to me, I thank her in particular for everything that she has done on this Committee. I am sure that we can all learn from her concision, accuracy and lack of repetition; I am referring, of course, to Members generally.

I also thank our Whip, my hon. Friend the Member for Lewisham East, who with great efficiency and charm has kept us in order and who now just wants me to shut up, because we both want to get down to the Chamber as soon as possible to talk about the closure of our A and E departments. I thank all Members, particularly the hon. Members for New Forest East and my right hon. Friend the Member for Torfaen, for their expertise, not just in terms of their experience of the ISC but generally on security and other matters.

Although this Committee has been relatively short, it has been a case of standing on the shoulders of giants. We have had a large amount of expert opinion to rely on from the Joint Committee and other Committees of the House, from the higher courts of this country and from expert Members in this House and the other place.

The Bill is not over yet; that is not a threat. We will see what happens in the remaining stages here and in the other place, but I think that we can go away comforted by the fact that we have explored the issues in full and have, in a reasoned way, contributed, I hope, to making the Bill better when it finally reaches the statute book. My hon. Friends have asked me also to mention the Clerk of the Commons for his assistance—the letter that we had in the first part of our discussions.

I think I have dealt with all matters. If I have forgotten anybody, I apologise. We have had a good Committee.

Julian Huppert (Liberal Democrat, Cambridge)

Further to that point of order, Mr Crausby. I add my thanks and those of my hon. Friend the Member for Edinburgh West to you, Mr Gray and all the staff involved: the Bill team, Hansard, the Doorkeepers and so forth. It has been an entertaining exercise. I will leave it to others to decide whether this Bill Committee has been a fair and effective administration of legislation and whether we balanced our Wiley correctly. It has been an enjoyable experience.

I thank the two Ministers for all their comments, particularly the hon. Member for Old Bexley and Sidcup for actually giving way on one point, which was satisfying after much frustration. I also thank the Whip, the hon. Member for Bexleyheath and Crayford, for how he has conducted things; it has been a pleasure working at least on the same side of the room as him on a number of occasions. I thank Opposition Committee members for backing us on some, if not all, of our proposals.

It has been a great pleasure to learn so much about procedures in the event of a tie. I am glad that we have all had that opportunity. It has also been a great pleasure to have the chance to educate the hon. Member for Hammersmith on the nature of a coalition. Two parties can work together despite not agreeing on absolutely every issue. The Opposition will know that the coalition between Blair and Brown had some tension as well. I thank you again, Mr Crausby, for your chairmanship. We will see how the Bill proceeds.