Detainee Inquiry

Lord Clarke of Nottingham Excerpts

Thursday 19th December 2013 Commons Chamber

[The Minister without Portfolio (Mr Kenneth Clarke)]

With permission, Mr Speaker, I would like to make a statement on a report being published today by the former Court of Appeal judge, the right hon. Sir Peter Gibson, on the treatment of detainees. It may first be helpful to remind the House of the circumstances in which Sir Peter’s inquiry was set up.

In the statement he gave to the House in July 2010, the Prime Minister explained that questions had been raised about the degree to which, in the years immediately after the horrific events of 11 September 2001, British officers had worked with those from foreign security services who were treating detainees in ways they should not have done. The Prime Minister made it clear that it has never been suggested that United Kingdom intelligence officers were themselves directly responsible for the mistreatment of detainees. Nevertheless, the allegations of involvement had done harm to our reputation as a country which believes in human rights, justice and the rule of law and had called into question the robustness of the rules under which our services operate.

The Prime Minister then set out his determination and the determination of the whole coalition Government to get to grips with these allegations so that the security services could get on and do their vital job of keeping us safe. First, he announced that we would seek to settle the civil compensation cases brought against the Government by the former Guantanamo detainees. In due course, a significant settlement was agreed with them in November of that year. Secondly, he introduced vital reforms to improve the operational, parliamentary and judicial regulation of the agencies. Thirdly, he invited Sir Peter Gibson to hold an inquiry that would deal properly with the historical allegations. Sir Peter was asked to begin immediately with his preparatory work, and his inquiry was due to start formally when the police investigations into these matters had concluded. The Prime Minister made it clear that he expected the inquiry to take no longer than a year.

Sir Peter and his panel and the Government have been frustrated in their hopes of progress by how long the police investigations have taken. It was not until January 2012 that the Crown Prosecution Service and the Metropolitan police issued a joint statement announcing that there was insufficient evidence to bring prosecutions in the two criminal investigations that had been preventing the start of the inquiry’s public work, but at the same time they also announced that new investigations would begin into alleged renditions to Libya in 2004. Of course, it is important that these matters be investigated properly by the police, but it raised the prospect of a still further indeterminate delay before Sir Peter could begin to call witnesses and hear evidence.

With the panel’s agreement, therefore, I announced in a statement to the House that the detainee inquiry would produce its report based solely on its preparatory analysis. This report was to highlight any particular themes or issues that should be the subject of further examination. A classified version of the report was to be presented to the Prime Minister, and an open version was to be made public. Nevertheless, the report is a substantial piece of work and the product of extensive independent analysis of some 20,000 written documents, some of which have not been examined by any previous review. It finds no evidence in the documents to support any allegation that UK intelligence officers were directly responsible for the mistreatment of detainees held by other countries overseas, and no material has been referred to the police for further consideration, but it identifies 27 issues that require further examination, grouped under four broad themes: interrogation and treatment; rendition; guidance and training; and matters relating to policy and communications.

The period concerned was one in which we and our international partners were suddenly adapting to a completely new scale and type of threat from fundamentalist religious extremists, and many UK intelligence officers had to operate in extraordinarily challenging environments, subject to real personal danger. Everyone in the Government and the agencies accepts, however, that this bravery has to be combined with clear rules of proportionality and accountability to ensure that we uphold the values we are working hard to defend. So, while we accept that intelligence operations must be conducted in the strictest secrecy, we also expect there to be strict oversight of those operations to ensure that at all times they respect the human rights that are a cornerstone of this country’s values.

The questions raised by Sir Peter’s report, combined with the other reviews that have been conducted of the period, paint a picture of Government and agencies struggling to come to terms with the new level of threat faced by this country. It is now clear that our agencies and their staff were, in some respects, not prepared for the extreme demands suddenly placed on them. The guidance regulating how intelligence officers should act was inadequate. The practices of some of our international partners should have been understood much sooner. Oversight was not robust enough, and there was no mechanism in the civil courts for allegations against the security and intelligence services to be examined properly. Most of those problems related to a relatively short period of time in the early 2000s, but they risked some damage to our reputation as a nation that prides itself on being a beacon of justice, human rights and the rule of law. I believe I speak for the whole House when I say that if failures and mistakes were made in that period, it is a matter of sincere regret.

From its very first days in office, this Government have been determined to enact reforms that ensure that the problems of the past cannot be repeated. Those reforms, and changes made under the previous Government, mean that the framework within which our agencies now operate is very different from that during the period that Sir Peter’s report describes. We have finalised and published consolidated guidance, setting out very clearly how intelligence that could lead to a detention should be handled, and how detainee interviews overseas should be conducted. Compliance with this guidance is monitored by the independent Intelligence Services Commissioner who reports annually to the Prime Minister. We have made it clear that Ministers must be consulted whenever an intelligence officer involved in a planned operation believes a detainee is at serious risk of mistreatment by a foreign state, even if that raises the risk of a terrorist action going ahead. We have dramatically improved Parliament’s ability to oversee the actions of the agencies—we did that through the Justice and Security Bill, which I took through the House on behalf of the Government last year. The Intelligence and Security Committee is now a Committee of Parliament, fully independent of Government, and the Prime Minister can no longer appoint its Chairman. It can require information of the intelligence agencies, not just request it. It has a new statutory right to review past intelligence operations and, for the first time, the Committee and its staff will have direct access to agency papers.

Finally, the Justice and Security Bill, which is now an Act of Parliament, introduced new court procedures to ensure that if allegations are made that things have gone wrong, even the most secret intelligence activities can be examined by an independent judge in a civil court of law. The combination of these reforms means that a line has begun to be drawn under a difficult period of the past. Despite that, it remains important that we deal properly with the 27 issues that Sir Peter’s report raises. It would be wrong to leave those issues, many of which relate to matters of policy, unexamined for the unknown amount of time it will take for the police to complete their related investigations. Equally, it would be wrong to ask a judge to examine material which in any way could compromise a live criminal investigation. It is the combination of those police investigations and the fact that they thwart a judge’s inquiry that have led to the frustrating delay in this case, which is felt by everyone involved.

Therefore, the Prime Minister has discussed and agreed with the Intelligence and Security Committee of Parliament that it will inquire into the themes and issues that Sir Peter has raised, take further evidence, and report to the Government and to Parliament on the outcome of its inquiry. Additional resources will be provided to the Committee to undertake that work, so that it does not affect the work it is currently doing on the killing of drummer Lee Rigby in Woolwich earlier this year, and its work on the following inquiry it has announced it will be undertaking into the necessary balance between privacy and security as regards communication interception.

To assist the Committee with its work, the Prime Minister has already asked the agency heads to provide him with full and detailed responses to the questions raised in the panel’s report for which they are responsible. He has also asked the Intelligence Services Commissioner to provide his views on current compliance with those aspects of the consolidated guidance that he monitors. Both of those reports will be made available to the Committee in full by the end of February next year.

I hope and expect that by the end of next year the ISC will have finished its report. I also hope that the police will have finished their investigations. It will then be possible for the Government to take a final view as to whether a further judicial inquiry still remains necessary to add any further information of value to future policy making and the national interest.

[Sadiq Khan (Tooting) (Lab)]

I thank the Minister for his statement and Sir Peter Gibson for his work and the interim report.

As I respond to the right hon. and learned Gentleman’s statement, I should make it clear that I have not had sight of the redacted version of Sir Peter Gibson’s interim report, which is published today.

I am confident that I speak for the whole House when I say that MPs from all parties condemn all forms of inhumane, cruel and degrading forms of treatment. Our freedoms and the high standards we promote in protecting human rights distinguish us as a nation, and our influence across the globe is strengthened as a result. Those freedoms are fundamental to our society, and our security and intelligence services work on an ongoing daily basis to protect us and the freedoms we hold dear.

We owe those services a debt of gratitude for keeping this country safe from threats—work that is dependent on men and women taking grave personal risks on a daily basis. Again, I know I speak on behalf of Members from all parties and the public in thanking them for their crucial role. Notwithstanding the crucial work that the agencies do to keep us safe, any allegations of involvement by members of our security and intelligence services in serious breaches of the law need proper and full investigation.

Any acts that might contravene the law in the ways alleged would run counter to everything our nation stands for and believes in. For that reason, it is important there is a full and proper investigation, exposing any wrongdoing and bringing those responsible to account. We also need to ensure that the appropriate lessons are learned and that there is no repeat in the future. We need to do that in as independent, open and transparent a manner as possible, in a way that maintains the confidence of the public.

It is now almost two years since the Minister stood at the Dispatch Box and announced that his Government’s inquiry, led by Sir Peter Gibson, was to be abandoned because of ongoing criminal investigations. I have some questions for the Minister that I hope he will be able to answer this afternoon. Why has there been such a long delay in the publication of Sir Peter Gibson’s report? Of course, we understand why sensitive parts of the report need to be redacted, but who decided which sections were redacted?

The Minister was categorical in January 2012 that a future judge-led inquiry would be restarted at an appropriate time in the future. That is particularly important in light of the commitments made by the Prime Minister, the Foreign Secretary and the Deputy Prime Minister that it had to be an independent judge-led inquiry. Bearing in mind that the interim inquiry by Sir Peter Gibson has identified 27 issues that require further examination, why have the Government changed their mind about the importance of the restarted inquiry also being judge-led?

There are recent examples of a judge successfully examining material in an inquiry without compromising criminal investigations. Will the Minister therefore explain why he has handed the inquiry into the issues that Sir Peter has raised over to the ISC rather than a judge? I have great respect for the Committee’s work and recognise that it has increased powers and increased resources, but does the right hon. and learned Gentleman believe that his original aspirations—and those of the Prime Minister, Deputy Prime Minister and Foreign Secretary—for the inquiry to be as independent, open and public as possible can be met by such an investigation?

Bearing in mind that much of the litigation in this area will inevitably be conducted under closed material proceedings, the scope and coverage of which the Government extended last year to include such cases, does the Minister agree that there is even more reason to ensure that any investigation is as independent and transparent as possible, and has the confidence of the public? Does the Minister believe that the public will have greater confidence in an ISC investigation than in a judge-led one? If so, will he explain his thinking?

Organisations representing detainees and their families had concerns that Sir Peter Gibson’s original inquiry was not compliant with articles 3 and 6 of the European convention on human rights. They chose to disengage from the process. I asked the Minister back in January 2012 what he intended to do to ensure that the inquiry’s legitimacy was bolstered by working to re-engage those groups and organisations. The interim findings, published by Sir Peter Gibson today, could have been used as an opportunity to show the non-governmental organisations and the public that the judge-led inquiry was working under its terms of reference to win back the confidence of the public. Does the Minister think that that is an opportunity missed?

My final question for the Minister is what additional steps he and the ISC will take to address the perception—fair or unfair—that today’s announcement of the ISC taking over the inquiry is a whitewash? Ultimately, the key aims are to get to the bottom of what happened and to ensure that lessons are learnt and justice is done, as well as maintaining public confidence. We will work constructively in any way we can to satisfy those aims.

[Mr Clarke]

First, I certainly share the right hon. Gentleman’s frustration with the delay, which was not contemplated by the Prime Minister or anyone in government when we embarked on this process. Indeed, we are extremely anxious to inquire as necessary as quickly as possible so that we can draw a line under this matter, learn lessons and ensure that the House can be totally confident that there would be no similar problems in future. The delay has been caused by the length of time taken for the police to investigate these matters. No politician has control over the police and it is right for them to inquire into issues where they believe it is justifiable to do so, but the result has been a timeless delay. Nobody has been able to proceed, in Sir Peter Gibson’s case, to the calling of witnesses and the taking of evidence, because that could compromise any criminal procedures and investigations that needed to take place in due course.

I join the right hon. Gentleman in praising the work of Sir Peter and his panel in producing this report, which, in the circumstances, is extremely valuable, but as the panel makes clear, it can come to no conclusions and make no findings of fact or conclusive allegations against anybody, and nor can it clear anybody conclusively, because it relied on documents that were frustrated when it came to calling witnesses.

Only one passage in the report is redacted. We did our best to reach agreement with the panel on the redactions and we were anxious to publish as much as possible, as was the panel. The redactions relate to a matter that is already subject to a public interest immunity certificate in the courts. In my and the Government’s opinion, there was no going back on that. Sir Peter and the panel acknowledge in the text that the redaction is of no significance to the general narrative and the issues set out in the report.

The Prime Minister was quite clear about preferring a judge-led inquiry. When he said that almost two years ago, I said we would set up the judicial inquiry once the police investigations were over and we could get the inquiry under way. That has not proved possible, however. Nobody contemplated at that time that in December 2013 we would still be trying to work out when we would be capable of proceeding.

A judge-led inquiry normally involves the publication of evidence as the inquiry proceeds, although in cases such as this the evidence is sometimes redacted. The whole process of a judicial inquiry could conceivably compromise a criminal investigation. It is true that some recent inquiries, such as that conducted by Lord Justice Leveson into a totally different matter, proceeded although criminal investigations were taking place, but Lord Justice Leveson avoided, very scrupulously, any areas that might compromise the criminal investigation. The trouble with Sir Peter Gibson’s scope is that the only matters that he is considering are the subject of criminal investigations, so the same situation could not arise. The Prime Minister has therefore come up with the solution of referring the issue to the Intelligence and Security Committee in the House of Commons.

I hope that the right hon. Gentleman can be persuaded that that is a very good way of proceeding. The ISC’s inquiry can start now, whereas a judge-led inquiry could not. Moreover, the House of Commons has greatly strengthened the ISC. When we debated these matters last year, Members in all parts of the House agreed that we should make the ISC independent, more powerful, and capable of calling for, rather than merely requesting, the information that it wanted. I think that we now have an opportunity to demonstrate that its work is a valuable addition to all the other requirements in our constitution to ensure that the activities of our intelligence services are properly accountable, and that, as far as is feasible, there is some democratic oversight of what can be done.

Finally, the right hon. Gentleman reminded me that, two or three years ago, non-governmental organisations and perfectly reasonable lobbies had criticised Sir Peter Gibson and refused to co-operate with him because, in their view, his inquiry did not comply with article 3 of the European convention on human rights. I remember that exchange, which disappointed me at the time. The organisations concerned appeared to be arguing for a full-blooded public inquiry in which everyone would be represented—detainees present, press sitting in the gallery at the back—and in which a great deal of evidence would be produced that would be of enormous value to this country’s enemies. No country in the world would sensibly deal with matters in that way. I think that the process we are adopting, with the use of the ISC, is the best way of ensuring that our intelligence services remain as strong and effective as we all want them to be, that their bravery is respected, and that they are protected when they carry out work on behalf of all of us, while also ensuring that there is proper scrutiny and a proper inquiry so that we can be reassured that the highest ethical guidelines are being followed.

[Sir Malcolm Rifkind (Kensington) (Con)]

May I, through the Minister, give the House an assurance about the work that the Intelligence and Security Committee has agreed to undertake?

As Members will know, in 2005 and 2007 the Committee published reports on the treatment of detainees and on rendition. Those reports turned out to be unsatisfactory and incomplete, because the intelligence agencies had not provided the Committee with all the relevant information, which, at the time, they were under no statutory obligation to do. As the Minister has said, that has now changed: the agencies are required to provide all the information, and the Committee’s own staff can go directly to them and inspect their files. It is on that basis, and on the basis of the extra resources that we will be given to prevent our other work from being interfered with or delayed, that the Committee believes that it can fulfil this duty, and is very willing to do so.

[Mr Clarke]

I am grateful to my right hon. and learned Friend for explaining why we gave the ISC more powers, and why that very powerful Committee, with its very strong membership, is capable of exercising its responsibilities and—we hope—producing the information that we require. The Gibson report did indeed indicate that when it had previously tried to conduct inquiries into detention and rendition, the Committee had not been given access to much fuller information involving all the incidents of detainee mistreatment that had been complained about, and the full internal investigations of rendition that had taken place. I have no doubt that my right hon. and learned Friend’s Committee will rectify that when it returns to the subject.

[Mr Jack Straw (Blackburn) (Lab)]

Thank you very much, Mr Speaker, for allowing me a response at greater length than is usual. May I thank the right hon. and learned Gentleman for his statement and the care he has taken in handling this matter, which I personally appreciate, and may I say that I share many of the sentiments he has expressed?

I greatly welcome today’s announcement that the Intelligence and Security Committee will now inquire into the questions raised by Sir Peter Gibson’s interim report, and that all relevant witnesses will be able to give testimony in person? Such a further inquiry is, surely, imperative given that the 27 sets of issues Sir Peter identifies have been based entirely on the available documents, and not on any statements, or oral examinations of witnesses?

May I tell the House that, as Foreign Secretary, I acted at all times in a manner that was fully consistent with my legal duties and with national and international law, and that I was never in any way complicit in the unlawful rendition or detention of individuals by the United States or any other state?

Is the right hon. and learned Gentleman aware, as Sir Peter brings out in his interim report and has long been known more widely, that in early January 2002 I agreed that the UK should not stand in the way of UK nationals who were detained in Afghanistan by the United States being transferred to Guantanamo Bay, and that I did so after careful legal advice and because, at the time, it was the only practical alternative to their remaining in custody in Afghanistan? But will the right hon. and learned Gentleman also accept that we never agreed in any way to the mistreatment of those detainees or to the denial of their rights, that we made repeated objections to the United States Government about these matters, and that I was able to secure the release of all British detainees by January 2005?

Does the right hon. and learned Gentleman agree that we should never forget the context: that the period covered by this report was the aftermath of the world’s most appalling terrorist atrocity ever, on 11 September 2001, and that in this period there was a continuing and profound anxiety about further terrorist outrages to come—anxieties that were all too well placed, as we all discovered on 7 July 2005?

Finally, will the right hon. and learned Gentleman agree that throughout this difficult period it was the exemplary professionalism and bravery of our armed forces and of the staff of our intelligence and security agencies which ensured that, in so far as was humanly possible, our nation and its people were kept safe?

[Mr Clarke]

I have the greatest respect for the right hon. Gentleman and I have considerable sympathy with him for the frustrating personal position in which he finds himself. There has been briefing around this matter and allegations have been made, and he has had no opportunity of appearing before Sir Peter and giving evidence, which he was anxious to do, and helping Sir Peter and the panel establish what actually happened during the period in question. He will now have the opportunity to do so when the ISC looks into these matters. Obviously, I cannot give any opinion on the issues the right hon. Gentleman raises because they relate precisely to what we are trying to get someone to investigate and reach a conclusion on, but it is certainly the case, as Sir Peter’s report makes clear, that one of the issues that will have to be looked at is whether Ministers were properly informed in full about what was going on and what necessary ministerial authorisation there was.

I also share the right hon. Gentleman’s final sentiment. I hope that all Members agree that we want the toughest and most effective intelligence services we can get and that we want our intelligence services to be at least as effective as those of any other nation. But we are a democracy and we also want to know that what they do is proportionate, complies with essential ethical standards and is authorised by a Minister, and that all the activities are carried out by people who are accountable to the Ministers responsible and to Parliament as well, when possible. That is the conclusion I hope we will eventually reach.

[Mr Andrew Tyrie (Chichester) (Con)]

The security services do a great job and they deserve our support, but I do not think this statement will help them. It is truly shocking that Britain has facilitated kidnap and torture, and the decision to abandon this judge-led inquiry will, I think, come to be seen as a mistake. Does the Minister agree that it is as essential for the standing of the intelligence services, on whom we depend, as it is for the wider public that we get to the truth about the extent of Britain’s involvement, as only that way can we restore trust? The Minister has said that the ISC will complete this work, but what confidence can the public have in its conclusions when that same body wrongly concluded that Britain was not involved in 2007, only to be flatly contradicted by a High Court ruling the following year? Is it not the case that the ISC’s new powers about which we have just heard are in any case heavily qualified—papers may be withheld on grounds of sensitivity and the ISC’s remit on operational matters is only permitted in certain circumstances?

[Mr Clarke]

First, I share my hon. Friend’s determination that we get to the truth of these matters and that they are investigated. Indeed, I share his concern that anybody from the United Kingdom should be involved in unlawful rendition, and I used to support his campaigns when we were both in opposition. I disagree with him about the way we are progressing now. The judge-led inquiry cannot proceed with taking evidence from people and publishing evidence alongside continuing police investigations which may or may not lead to some further criminal proceedings if anyone is eventually prosecuted. The question is do we, frustratingly, just continue to wait—I think it is more than three years since the Prime Minister made his statement—or do we seek to demonstrate that we really have now got a parliamentary Committee with the powers and authority required to do the job and report back to this House and the Prime Minister on its findings and recommendations?

I am sorry that my hon. Friend is dismissive of the Committee’s powers. He took part in the debates last year. We have considered them and the Committee has far more powers than it previously had. One of the things it will be looking at is how, when the previous Committee investigated treatment of detainees and rendition, it did not appear to have been supplied with information that was in fact being shared with others inside the Government and which had been assembled by the agencies for their own use. I think it is highly unlikely that that will be repeated and I think the present Committee can be relied upon to use the powers to demand papers and to go to the offices and look through the records of the agencies in order to revisit its conclusions on those matters.

[Margaret Beckett (Derby South) (Lab)]

May I ask the Minister to confirm my understanding of what he has said, which is that Sir Peter and his team have identified a large number of questions, many of them fairly familiar, to which they have been unable to find answers in the documents they have studied, and that in consequence they have not drawn conclusions? I ask him to reaffirm that that is the case, because my strong suspicion is that there will be those who will try to draw conclusions nevertheless.

[Mr Clarke]

Given that somebody has been briefing in advance, which I give the assurance is certainly not me or anybody with my authority, it is already clear that people are drawing the conclusions that we would anticipate them drawing if they already happened to be on one side of the argument or another before we started, and that, I am afraid, will continue. The right hon. Lady makes an extremely important point, and Sir Peter makes it clear at least twice in the report he is publishing today that it is quite wrong, and indeed impossible, to make findings of fact, and certainly any findings concerning any individuals involved, before he has called evidence, called them before him if necessary, given them an opportunity to explain and completed these investigations. That is why this inquiry identifies issues, which the ISC will now consider and decide whether and how to pursue. It has not made any findings of fact. In this country it would be quite wrong to make findings of fact of any kind, or to draw adverse inferences against anybody, when nobody has given any evidence, nobody has been challenged, and nobody has been given a chance to give their own explanation of events.

[Dr Julian Lewis (New Forest East) (Con)]

May I reassure my hon. Friend the Member for Chichester (Mr Tyrie) that the agencies do not have the power to withhold sensitive material from the ISC, of which I am a member? If they wish to do so, they have to appeal directly to the Prime Minister. In every other respect, they have to give us what we want to see. May I also remind the House that the ISC has been keen to get to grips with this matter, and that it actually started its own investigation, which had to be stayed when the Gibson inquiry was set up? Finally, may I give the House a personal assurance that, notwithstanding the context of trying to bring Libya back within the comity of nations, there are members of the ISC—one third of whom are senior Labour Members—who, far from endorsing any whitewash, would take a great deal of convincing that it was ever reasonable, proportionate or justifiable to supply people to Colonel Gaddafi’s regime?

[Mr Clarke]

I endorse what my hon. Friend says about the determination of the ISC to help the House to bring these matters to a proper conclusion and to form its judgments on them in due course.

[Jeremy Corbyn (Islington North) (Lab)]

Is not the heart of the issue the lack of effective accountability of the security services, and the fact that the ISC is not an ordinary parliamentary Committee? It is appointed by the Prime Minister and reports to him. Are not the Minister’s proposals just a way of sidestepping the need for a serious examination of the accountability issue and for holding an independent judge-led inquiry rather than the process that has been set out?

[Mr Clarke]

I have addressed that point already, and I would have hoped that my earlier answer would have satisfy the hon. Gentleman. My starting point is the same as his. We need the intelligence services, and I share the gratitude that many have expressed for the bravery and determination that they demonstrate in protecting the citizens of this country from the undoubted threats to their lives and safety. I want intelligence services that work properly. Indeed, I hope that they will steal the secrets of our serious enemies. I also hope that they will alert us to what those enemies are proposing to do, and help us to frustrate them. It is the experience of quite a number of people in this House that that is exactly what the intelligence services do, and that they do it very effectively.

It is also important, as the hon. Gentleman says, that what the intelligence services do is proportionate to the scale of the risk posed, that they are accountable and that, when they start going in for subterfuge, it is authorised by a Minister who is democratically accountable to this House. That is what marks out our intelligence services from those of totalitarian regimes, and that must always be the case. Those standards must apply to all the activities involved, including collecting data, surveillance and the activity of the agencies in the field. I am afraid that, in the modern world, such activities will always be necessary to protect the safety of our citizens, so long as we are not damaging our values and so long as we can be confident that everything is accountable and authorised by the proper people.

[Richard Ottaway (Croydon South) (Con)]

The Foreign Affairs Committee published its human rights report in October. In it, we expressed our concern that no progress had been made in agreeing with human rights groups how a successor to the detainee inquiry might proceed on a more transparent basis. I have heard what the Minister has just said about human rights groups, but given that we owe a lot to their efforts—there would have been no Belhaj investigation without them, for example—will he initiate discussions to see whether any common ground can be established?

[Mr Clarke]

It is also possible that there would have been no Belhaj investigation if someone in Colonel Gaddafi’s entourage had not carelessly left their papers lying about when fleeing Tripoli. That is no doubt one of the matters that will be inquired into in due course. I have the greatest sympathy with the human rights organisations; they are on the side of the angels, and they expound principles with which I wholeheartedly agree. However, I continue to believe—as I stated when we were arguing about closed sessions in civil proceedings last year—that they are being wholly unrealistic if they think that the intelligence services can be effective while the details of all their operations are being discussed in open court. We are not here to feed the media, or to help people who are gathering evidence for whatever civil litigation they might wish to bring. We are here to ensure that we have truly effective, working intelligence agencies that protect the citizens of this country. We make them accountable, but we also need to exercise common sense and have regard to their safety as we go about inquiring into their activities.

[Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)]

I welcome the report, and I believe that the whole House will welcome the statement from my right hon. Friend the Member for Blackburn (Mr Straw). We would expect nothing less from such a distinguished parliamentarian who has served the House and this country extremely well. May I reiterate the point that he made about the importance and desirability of oral evidence being taken? Much has been written about that, but perhaps we will now have the opportunity to set out the facts.

--- Later in debate ---

[Mr Clarke]

I very much hope so. Like me, the hon. Gentleman obviously regrets that it has taken three years to get to this point. I hope that the ISC will be able to report back by—who knows?—the end of next year.

[Rory Stewart (Penrith and The Border) (Con)]

It seems curious that, if a judge-led inquiry cannot proceed while a police investigation is going on, an ISC inquiry should be able to proceed. Another, more interesting, issue is the question of democratic accountability. My right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) is a man of deep experience, and we are lucky to have him in the House. If the time should come when he decides to step down, however, we will need procedures of democratic accountability. Will my right hon. and learned Friend the Minister look into implementing the proposal in the Wright report that there should be an elected Chair of the ISC, subject to prime ministerial veto, who is ideally a member of the Opposition?

[Mr Clarke]

As I said in my statement, the problem with a judge-led inquiry is that it is normal, having taken evidence from witnesses, for it to produce evidence as the inquiry goes along. The ISC can proceed in whatever way it wishes, however, and it is not likely to do that. So we can start to proceed with the ISC inquiry, whereas to proceed with a judge-led inquiry could be more difficult and would certainly give rise to some controversy. I do not think that one route is necessarily preferable to the other, so long as both are strong, independent and effective in coming to their conclusions.

Whether we have done enough to strengthen the ISC will no doubt be easier to decide when it has completed the three important reports that it is working on. It is now looking into the background agency information on the murder of Lee Rigby, as well as examining the whole question of collecting material, surveillance and the balance between security and privacy. And it is now going to look into the considerable matters of detention and rendition, although I presume that it will not undertake all those inquiries contemporaneously. We wish the members of the ISC well in their labours; they have taken on a considerable amount of responsibility. If, at the end, we decide that the Committee needs to be strengthened further, that will be the time to look into that. It will not be a matter for me anyway; it will be for the House to decide on the procedures for appointing the Committee.

[Mr Speaker]

It is clear that the members of the Committee are not only immensely distinguished colleagues—it would be impossible to overstate the extent of their distinction—but destined to be very busy bees in the period ahead.

[Bob Stewart (Beckenham) (Con)]

My right hon. and learned Friend has already mentioned this point, as has the right hon. Member for Blackburn (Mr Straw), but may I reiterate how grateful we should be to the men and women of the security services? They often work in dangerous and lonely conditions, and they have to act with great gallantry, for which they get scant recognition. The House must recognise that fully.

[Mr Clarke]

I agree entirely with my hon. and gallant Friend. He understands how much the forces in the field, as well as the public in this country, depend on the accuracy of the intelligence available to them and on the ability of the people who work on our behalf to infiltrate the organisations with which we unfortunately sometimes find ourselves faced. I endorse all his sentiments in full.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

My right hon. and learned Friend is to be commended for the candour and openness of his statement to the House today. Is it not clear that the right hon. Member for Blackburn (Mr Straw) was dealing with unprecedented and extraordinary circumstances in the aftermath of 9/11, and many people, of all different political persuasions, looking objectively at the decisions he took, will conclude that he discharged his duties then with complete responsibility and acted with total integrity?

[Mr Clarke]

I would expect that, certainly, and absolutely nothing in this report casts doubt on that integrity at all. The right hon. Member for Blackburn has the misfortune of being named in it because he had that most responsible office at the time, but he has already given his statement, as it were, to this House and it is quite obvious that the problems he was dealing with were immense and unprecedented, and that a great deal was done while he was Foreign Secretary to protect this country from further harm.

[Jacob Rees-Mogg (North East Somerset) (Con)]

Following on from the questions from my hon. Friends the Members for Chichester (Mr Tyrie) and for New Forest East (Dr Lewis), will my right hon. and learned Friend be able to give an undertaking on behalf of the Prime Minister that the reserve power to refuse sensitive information to the ISC will not be used?

[Mr Clarke]

As there is that reserve power, I cannot give an absolute guarantee that it will be a dead letter when we start. The Prime Minister is as anxious to get these matters resolved—to draw a line under them—as everybody in this House is. So it is inconceivable to me that the Prime Minister will be persuaded to start using reserve powers just to cover up embarrassment or to avoid the thing going too far, and I certainly hope that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) is reassured by that; it is not what the reserve power is for. Unfortunately, there are occasions when there are just disagreements about how dangerous it is, or otherwise, for particular information to be disclosed widely at all. The Prime Minister has the invidious task of making the final decision on that if a real conflict arises, but there is no reason to anticipate at this stage that the ISC and the agencies are going to be in any conflict that would give rise to that.

[Mr Robert Buckland (South Swindon) (Con)]

Does my right hon. and learned Friend agree that perhaps the answer to the question posed by my hon. Friend the Member for Penrith and The Border (Rory Stewart) is that the ISC’s proceedings will be covered by parliamentary privilege. Has an assessment been made of the effect of privilege on the course of the ongoing police investigation, as I suspect it would be helpful in making sure that the two inquires are kept separate?

[Mr Clarke]

It is certainly important that the two are kept separate. I seem to recall that when the ISC was given its new status there was quite a bit of discussion about the extent to which privilege would apply to this particular parliamentary Committee, which is of course set up by statute, which is not usual for most of the others. I assume that the ISC can afford the full protection of privilege to the witnesses who are called before it, and that, again, ensures that they cannot suddenly find that this is all being held against them if they find themselves later, by any chance, in the unfortunate position of having to give evidence about the same facts again.

[Julian Smith (Skipton and Ripon) (Con)]

I understand that there were junior operatives on the front line who were raising these issues quite early on and whose concerns were ignored by the management of many of the agencies. Can my right hon. and learned Friend reassure the House that procedures are now in place for those who have information to be able to blow the whistle and for their concerns to be taken seriously?

[Mr Clarke]

I will not try to paraphrase the report, but that is one of the things it raises; there were about 40 occasions when our officers were raising queries about the treatment of detainees they were involved with and sometimes joining in the interrogation of. The question is: how were the queries handled? Not all of them appear to have been referred to Ministers, but these are the issues that are raised. This does underline that the agents involved were perfectly alert, and had the usual sensitivities, to the fact that the foreign officers with whom they were liaising were not necessarily following the same standards that we would wish. The thing I should emphasise, and should have emphasised more as I have gone through, is that this is what the consolidated guidance put out by the Prime Minister underlined when he put it out; it provided absolute clarity, for the first time, about how such concerns should be handled, and gave much better and clearer guidance to the officers themselves about what they should do if they are becoming concerned about the conditions in which detainees are being held.

[Mr Philip Hollobone (Kettering) (Con)]

These matters are clearly difficult for the police to investigate. My right hon. and learned Friend, like everybody else, is clearly frustrated at the amount of time this is taking. In his discussions with the Home Office, has he come to the conclusion that this is due to a lack of resources, of leadership or of co-operation with other Governments? What can be done to speed up the police investigation?

[Mr Clarke]

I wish I could find some way of speeding up the police investigation—I have wished that several times in the course of the past two or three years. But it is a fundamental principle that police investigations in this country are not subject to political control, and it is just not possible for a Government Minister to start intervening and questioning or second-guessing what the police are doing. I am assured that the police are carrying out thorough investigations and I only have estimates of when they might finish. That is why we have come to the situation, which has dissatisfied some of my colleagues, where we really have to get on and inquire into this, and the best way of proceeding is to put our new ISC to the test.

[Mr Speaker]

I am grateful to the Minister and to colleagues.

Bilderberg Conference

Lord Clarke of Nottingham Excerpts

Monday 10th June 2013 Commons Chamber

[Mr Michael Meacher (Oldham West and Royton) (Lab)]

(Urgent Question): To ask the Chancellor of the Exchequer if he will make a statement on the Bilderberg conference, which he attended.

[The Minister without Portfolio (Mr Kenneth Clarke)]

This is a first occasion for me, as I have never previously answered a question in the House of Commons on behalf of a private organisation for which the Government have no responsibility. I have been a member of the steering committee of Bilderberg for many years now—about 10 years, I think—and by chance this will be my last year, as we have a rule against being on the committee for too long, so I am on the point of stepping down. [Interruption.] Other roles are timeless, with no rules at all, but in this role I have now reached the end of my allotted span.

The Bilderberg organisation exists for the purpose of holding meetings once a year in various countries; it exists for no other purpose. This year, the meeting was held at a large hotel near Watford in Hertfordshire. I did not receive adequate notice of the right hon. Gentleman’s question—because I was not found in time—to put to hand the list of those who participated and the agenda we discussed. We always circulate those before the meeting, and they are readily available. I can certainly put any hon. Member in touch with a source of the list of those who took part.

Each year, we invite over 100 people—it was about 140 this year—drawn from both sides of the Atlantic; from Europe including Turkey; and from the United States and Canada. The people who attend are drawn from the worlds of government, politics, academia, defence and journalism. The people who attend change slightly each year. There is a core of those who attend regularly; different people come—[Interruption.] Well, I am trying to guess why on earth a parliamentary question has been asked about this and in what people are interested.

All the people who attend do so as individuals; we invite people as individuals. Nobody attends representing any particular organisation to which they might belong. A very interesting two or three days take place in which we have discussions on matters of public affairs. A very wide range of experience and a very wide range of political opinion is represented. I always find that it greatly adds to the depth of my understanding of what is being talked about and contemplated in many parts of the United States and in Europe as well. It is one of the many political gatherings I attend from time to time as part of the background to my activities.

If the right hon. Member for Oldham West and Royton (Mr Meacher) finds something deeply disturbing in all this, I can advise only that he finds different people on the internet with whom to exchange tweets, and perhaps the House might be allowed to return to some matter of rather more real public interest in which this House of Commons has a role to play.

[Mr Meacher]

I thank the right hon. and learned Gentleman for that filibuster. The Bilderberg conference involves about 130 of the western world’s top decision makers from the banks, the multinational companies, the European Commission—[Interruption.] I am coming to the politicians. It also involves representatives of the World Trade Organisation, the International Monetary Fund and the World Bank, and, of course, leading politicians from the United States, Canada, the eurozone and the United Kingdom. Given that those people were clearly discussing some of the biggest issues confronting the western economies at this time, why have we heard no statement from the Prime Minister, the Chancellor or, indeed, the Minister without Portfolio, all of whom attended in an official capacity? Why did none of them offer a statement, although decisions of this kind may well have a significant effect on UK Government policy or the livelihood of future UK citizens?

It is said by some, including the right hon. and learned Gentleman, that Bilderberg is a conspiracy. Of course it is not a conspiracy. Nevertheless, 130 of the world’s top decision makers do not travel thousands of miles simply for a cosy chat. Those people came here in order to concert their plans to deal with a particularly awkward stage in western capitalism, and in view of that we, the public, are entitled to ask some questions and to hold them to account. The Prime Minister said in 2010:

“For too long those in power made decisions behind closed doors…and denied people the power to hold them to account. This coalition is driving a wrecking ball through that culture—and it’s called transparency.”

In the same year, the Chancellor himself announced his commitment to

“the most radical transparency agenda that the country has ever seen.”—[Official Report, 8 June 2010; Vol. 511, c. 206.]

So why is there no transparency about a very crucial meeting that could affect us all?

Finally, can the right hon. and learned Gentleman explain how at the start of last week the Prime Minister could announce a crackdown on corruption and lack of transparency among lobbyists, and by the end of the week he and the Chancellor could be insisting that the largest and most powerful lobbyists’ group in the western hemisphere—an anti-democratic cabal if ever there was one—should operate in conditions of utter blackout and complete secrecy?

[Mr Clarke]

The Bilderberg meeting does not make any decisions. It does not have any resolutions. We could not possibly reach decisions, because of the range of opinions represented there. It is purely a Chatham House rules discussion between the people to whom the right hon. Gentleman referred. The shadow Chancellor was there, Peter Mandelson was there, the Prime Minister was there, the Chancellor of the Exchequer was there, and most of us said things during the discussion that would not have come as a surprise to any of us, because we knew what our opinions were. We go there for the chance of having an off-the-record, informal discussion with the range of people described by the right hon. Gentleman, who are indeed distinguished, but who are not remotely interested in getting together to decide or organise anything.

If the right hon. Gentleman would like an invitation—if that is what really lies behind his question—I will take his own distinguished claims to participation in the group carefully into account, although I will of course consult the shadow Chancellor before taking that a step further.

Let me say with the greatest respect that this is total, utter nonsense. I would normally regard the right hon. Gentleman as not the sort of person to be taken in by this sort of rubbish. We all take part in lots of political and other discussions as private individuals, under Chatham House rules, and we do not expect everyone to go out giving a version of what we have just said. No one alters their opinions when we are there. As for transparency, this Government are by a street the most transparent Government I have ever been in, but we can only be transparent in regard to things for which the Government have responsibility, and for what we are doing as a Government.

[Mr Speaker]

Order. The Minister without Portfolio said, rather prosaically I thought, that Peter Mandelson was there. I assume he was referring to no less a figure than Lord Mandelson of Foy. I think that is the person he had in mind.

[Mr Clarke]

No, we all attend extremely informally; we are not there in any capacity.

[Mr Speaker]

Order. The Minister can resume his seat. No one in the House has a better sense of humour than the Minister, but I thought that he realised that I was gently teasing him.

[Sir Tony Baldry (Banbury) (Con)]

Is it not rather cruel to oblige the Prime Minister to spend a weekend with Lord Mandelson of Foy and the shadow Chancellor? Did anyone at the Bilderberg conference go away any the wiser as to how the Labour party, if it were to win the next general election, would square the circle and manage to tackle the deficit?

[Mr Clarke]

I can only hope that some people did, but Chatham House rules prevent me from offering any further opinion on that question.

[Ed Balls (Morley and Outwood) (Lab/Co-op)]

The idea of Lord Mandelson attending any meeting informally is not something I have ever experienced.

As one of the British parliamentarians who attended the weekend meeting in Watford, alongside the Prime Minister, the Chancellor, Lord Mandelson, Baroness Williams and the Minister without Portfolio himself, may I ask the right hon. and learned Gentleman whether he agrees that it is important that Ministers and shadow Ministers meet regularly to discuss important issues with fellow Ministers and Opposition politicians, academics, journalists and business leaders from around the world? Can he confirm that over the past 60 years the annual Bilderberg meeting has properly been attended by Prime Ministers, Chancellors and shadow Ministers from all parties, including Lord Healey, Lord Ashdown and the late John Smith?

Does the Minister without Portfolio agree that it is welcome that the Bilderberg group now publishes a list of all those who attend the meeting and the topics that are discussed? Does he agree that the list of topics on this weekend's agenda, including “Can the US and Europe grow faster and create jobs?”, “Africa's challenges”, “Trends in medical research” and “Developments in the middle east” are vital issues with which every Government and Opposition must grapple for the benefit of all citizens?

We fully understand that it is because the Minister without Portfolio is a member of the Bilderberg steering group that he is well qualified today to answer the urgent question that was addressed to the Chancellor; he is not doing so because of his economic expertise. If on the other hand the Minister without Portfolio were to stand in at the next Treasury questions, we and all conspiracy theorists would rightly be concerned.

[Mr Clarke]

I am grateful to the right hon. Gentleman for perhaps addressing the question more straightforwardly than I did. He is obviously feeling a little defensive. He is dealing with it a little more seriously and probably much more wisely than I did. Everything he said is entirely right. I have attended Bilderberg meetings for many years. The only reason I attend is that my own understanding of political and economic problems in various parts of the world is improved by the opportunity to have an informal weekend with the kind of people who go to the conference. Discussing things with, among others, the shadow Chancellor in a completely informal way, off the record, is also of considerable value. I am sure that he agrees that we derive a great deal from the meeting and we hope that it improves our contribution to debates here, too.

[Mark Reckless (Rochester and Strood) (Con)]

Our hon. Friend the Member for Penrith and The Border (Rory Stewart) was invited to a previous Bilderberg conference, and I wonder whether the Minister, as a member of the steering committee, could tell us why he has been dropped. Has he done something wrong?

[Mr Clarke]

Every year, about half those participating have never been before. Quite a lot of people come only for one meeting. The number of people who come every year is comparatively small—there is a kind of core and for some extraordinary reason I have been a part of that core over the past decade. My hon. Friend the Member for Penrith and The Border (Rory Stewart) made a most distinguished contribution but he should not be disappointed that he was not invited again. The British committee was trying to bring in a rising star of a younger generation, because we do not want the whole thing to become an ageing establishment of people who used to be something important in government. I have no doubt that one day my hon. Friend will be implored to attend again, but I cannot guarantee when that will be.

[Mr Speaker]

I call Mr Dennis Skinner.

[Mr Dennis Skinner (Bolsover) (Lab)]

I wouldn’t be seen dead with them.

How come when all those media moguls, the bankers and politicians have been meeting together since 1954, not one of them was able to spot the recession coming—or maybe they caused it?

[Mr Clarke]

We have had trade unions there sometimes, and there are plenty of social democrats. I do not think anybody as left wing as the hon. Gentleman has ever attended, but if I scratch my memory I will probably remember somebody. Obviously, the hon. Gentleman forecast with absolute precision the collapse of capitalism in 2007. In that respect, I agree that his foresight was rather better than that of most pundits. We continue to meet, in the hope that next time we will see it coming with slightly more clarity.

[Mr John Redwood (Wokingham) (Con)]

As many UKIP voters fear that the Bilderberg group is a plot to promote more unaccountable European government, can my right hon. and learned Friend give them any reassurance or suggest why they might be wrong in that thought?

[Mr Clarke]

Nowadays we get accused of plots to establish a Government of the world, to poison the local watercourses, and to plan an invasion of the United States of America. Ten years ago, I was told I was attending a plot to hand over Britain to Brussels and to subordinate us to a “United States of Europe”, and the next instalment of the plot will come later. I cite that example in order to point out that a fellow member of the steering committee was Mr Conrad Black, and in private, as in public, Mr Conrad Black was not in favour of handing anything over to Brussels and was not in any way furthering that cause. I regret to say that Mr Black is, as I recall, the only member who ever attended who has since had the misfortune to be sentenced to a term of imprisonment, whereupon he withdrew from the Bilderberg meetings.

Seriously, however, I assure my right hon. Friend that the full range of opinion from left to right from across western Europe is pretty well represented at Bilderberg. That in itself shows that the idea that we are furthering any kind of agenda is absolute nonsense. If I were plotting to do anything, I would not assemble that particular group of people, because we would never agree on an objective.

[Mr Tom Watson (West Bromwich East) (Lab)]

Can the Minister confirm that he declared his trusteeship of the body that funds the conference to his permanent secretary when he was appointed by the Prime Minister?

[Mr Clarke]

I congratulate the hon. Gentleman. I am looking that up, because I had forgotten. Actually, I am a member of the steering committee. When we were hosting at Watford, I discovered that I am, among other things, a trustee of the British steering group, so I am checking, with the aid of my constituency office, whether I ever put that in. I assure the hon. Gentleman that I had completely forgotten that it was set up on that basis, long before the rules were established. The trustees have never met as trustees. All I actually do is sit as a member of a committee and play my part in helping with the organisation of a meeting, and that is all I have ever done.

[Mr Edward Leigh (Gainsborough) (Con)]

We have had a bit of fun today—indeed, who would want to spend a weekend of irredeemable tedium discussing world economics with a bunch of establishment toffs? Surely the serious point is this, however: why on earth does the House of Commons think it is necessary to discuss what was said in a private meeting?

[Mr Clarke]

Perhaps my hon. Friend was not here when I started answering this question and said that this is the first time I have ever risen in the House of Commons to answer questions on behalf of a private organisation for which the British Government have absolutely no responsibility.

[Philip Davies (Shipley) (Con)]

I know I cannot be described as a rising star, so should I not presume that my invitation was lost in the post? Can the Minister say whether or not, either formally or informally, he took the opportunity while at the conference to discuss his campaign to keep the UK within the European Union, and which members of the EU were there?

[Mr Clarke]

My hon. Friend will not be surprised to learn that I do not think I am being too indiscreet when I say that the subject of the future of the European Union and Britain’s participation in it did come up from time to time over the weekend. People from many countries have quite a strong interest in that subject, so it was discussed, but under Chatham House rules, and I can assure him that no conclusions of any kind were reached.

[Mr Philip Hollobone (Kettering) (Con)]

Is my right hon. and learned Friend the only British citizen on the steering committee, and who does he think his replacement will be?

[Mr Clarke]

The other members at the moment are John Kerr and Marcus Agius, and I do not know who my successor will be. We are slightly overrepresented on the steering committee, which is probably a reflection of the quality of debate in this place and elsewhere in the United Kingdom.

[Mr Speaker]

Order. I think the matters have been fairly fully explored.

Justice and Security Bill [Lords]

Lord Clarke of Nottingham Excerpts

Monday 4th March 2013 Commons Chamber

[Sadiq Khan]

I believe that one of the impact assessments gave a figure of seven, whereas the press reports I read over the weekend mentioned one of 15. For those reasons, it is important to attach great weight to the conditions to which David Anderson refers. We would not wish, inadvertently, to see more cases than the Government say they expect to be reaching a CMP.

[Minister without Portfolio (Mr Kenneth Clarke)]

It seems to me that we do not know how many of these cases there will be, because we do not know what effect the new process will have. This is becoming a popular jurisdiction and the number of cases is slowly climbing, because no defence is offered to people’s claims and they are being awarded quite large sums of money. Once it is possible for the Government to defend themselves, people will, presumably, think more clearly about the substance of their allegations before bringing claims, and we just do not know how many we will have.

[Sadiq Khan]

May I adopt the Minister’s arguments in support of our sunset clause, which we will be debating later? He cannot predict the number of cases, which is why we think a sunset clause is appropriate.

--- Later in debate ---

[Sadiq Khan]

I thank the right hon. Gentleman for that clarity, which shows the advantages of being nice to Liberal Democrats. In case any of his colleagues have any doubt about the advice given, I have the report with me and will remind them of what the Joint Committee said just last week on the Government’s manoeuvres upstairs in Committee.

Given that in Committee the Minister unpicked the Lords changes to the Bill, amendments 26 to 40 are designed to emulate the same improvements as were made in the other place. Our amendments seek to put in place appropriate checks and balances on the use of CMPs. We do not underestimate the difficulties in reconciling the issues of justice and security as contained in the Bill’s title, but this is difficult and not impossible. By putting appropriate measures in place, we believe that the use of CMPs could be made proportionate to the scale of the problem they are intended to address. As has been said, our position is backed by the Joint Committee on Human Rights, whose most recent report systematically goes through the changes made in Committee by the Government and is consistent with the Government’s independent reviewer of terrorism legislation and with the views of the House of Lords.

So here we are once again, trying at a late stage in proceedings to bring some balance to the proposals in front of us. Our amendments address four main areas: judicial balancing both outside and inside proceedings, the use of CMPs as a last resort and equality of arms. I shall deal first with judicial balancing.

We have consistently agreed with David Anderson when he said that

“the decision to trigger a CMP must be for the court, not the Government.”

The original bill, as published, included no substantial role for the judge. I accept that this has been moved on since then, but some of the progress made in the other place has now been undone. Despite claims to the contrary, the Bill does not give a judge the proper discretion to decide between whether to hold proceedings in the open or to move proceedings behind closed doors. The Government chose to remove the Lords amendments that put in place a proper judicial balancing of these competing interests—the so-called Wiley balance.

Last week’s report from the Joint Committee on Human Rights is very powerful on this issue. I pay tribute to the Chair of the Committee, my hon. Friend the Member for Aberavon (Dr Francis), for all its hard work on this. In its report—Liberal Democrat colleagues will be keen to hear this—the Committee says that

“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other.”

[Mr Kenneth Clarke]

I must have misheard the right hon. Gentleman. He seems to think his amendment widens the discretion of the judge. It actually narrows it. The Bill as it stands says that the judge may hold a closed session after the three conditions are satisfied, which are mainly the fair and effective administration of justice. We have now reached the situation where critics are so nervous about what the judge may do that they want to lay down additional tests that the judge must put to himself before he makes a judgment one way or another. Lord Woolf, the former Lord Chief Justice, this morning made it clear that the judge now has complete discretion to decide what to do, and it is the critics who are so worried that there might be closed material proceedings that they are trying to put in extra tests to try to put the judge off. As the right hon. Gentleman’s amendments narrow the judge’s discretion, he might at least put his case the right way round. As the Bill stands, the judge has a pretty unfettered discretion.

[Sadiq Khan]

On at least four occasions over the past 18 months the Minister has told the public, the media, MPs and Members of the House of Lords that judges had full discretion, notwithstanding the four changes that he has agreed to make over the past 18 months. He cannot be right on all four occasions. Let me tell him what the House of Lords did, pursuant to the report of the Joint Committee on Human Rights. It put on the face of the Bill the balancing exercise that a judge should undertake, balancing on the one hand the public interest in the open and fair administration of justice and the public interest in making sure that there was no damage to our national security as a consequence of material being disclosed. In Committee the right hon. and learned Gentleman tried to tie the hands of that balancing exercise. In a new report last week from which I quoted, the Joint Committee said that he tried to do the very same thing. He is again arguing today why he is right and all the members of the Joint Committee are wrong.

--- Later in debate ---

[Sadiq Khan]

I really must make progress; there will be time for hon. Members to contribute after I have finished.

David Anderson, the Government’s independent reviewer of terrorism legislation, has himself said that

“the court’s power to order a CMP should be exercisable only if, for reasons of national security connected with disclosure, the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”

We should not legislate in a way that means that CMPs will replace tried and tested methods for dealing with sensitive material in open proceedings if those methods will do the job. Only if it is deemed, after consideration by a judge, that those tried and tested measures cannot be employed in a way that would allow important evidence to be used in a public court, would the option of a CMP be considered. The Bill as it stands does not allow for this. Our amendments would not, as some have argued, including the Minister on Second Reading, mean that a full and lengthy PII exercise had to be undertaken before a CMP could even be considered. On the contrary, the key word in all this is “considered”. Our amendments would deliver this. I hope that the House will support that as part of our efforts to maintain as much as possible of the precious traditions of openness in our justice system.

Some have interpreted the Government amendments tabled at the eleventh hour last week as delivering what we and others have asked for. They will lead to a Minister—in other words, one of the parties in the civil action or judicial review—considering the use of PII and the judge having to take their conclusion into consideration when deciding whether to grant a CMP. In our view, this is not an appropriate check and balance, and we will therefore look to amend the Bill accordingly.

Amendment 38 deals with the Wiley judicial balance within the CMP. The Government’s argument for resisting this is the same as their reason for resisting full judicial balancing on the decision on whether to order a closed proceeding in the first place. We are not persuaded of their arguments in that circumstance. We believe that this is another key component of judicial balancing and a crucial check and balance.

Our amendments also deal with the equality of arms. On Second Reading, the Minister said:

“We will also accept that any party, not just the Government, should be able to ask for a closed material procedure.”—[Official Report, 18 December 2012; Vol. 555, c. 722.]

We welcomed that statement. After all, equality of arms is backed by the JCHR and the independent reviewer of terrorism legislation, David Anderson QC. However, following the changes that the Government made in Committee, we now know that their idea of equality of arms is very different from everyone else’s. The JCHR report published last week is highly critical of what was done to the Bill in Committee. It says:

“in our view the Government’s amendment enabling all parties to proceedings to apply for a CMP does not provide for equality of arms in litigation because it would unfairly favour the Secretary of State”.

In short, it is a two-tier equality of arms—or, in the real world, an inequality of arms. Our amendment would restore proper equality of arms. I am pleased that the Government have decided to support us and have signed our amendment.

Some have said that the debates at this late stage are nothing more than angels dancing on the head of a pin. I disagree. There remain some fundamental differences, chiefly about judicial balancing and last resort, about which we are still concerned. I hope that colleagues in all parts of the House will support, in particular, amendments 30 and 31. We will first need to vote on amendment 26, which is a paving amendment that would ensure that the Bill contained the proper checks and balances that it needs without having to rely on the other place—with Lib Dem support, I hasten to add—to make sure that there is equilibrium in the great balancing act that we face between our national security and the rights of individuals.

[Mr Kenneth Clarke]

I rise early in the debate because I want to speak to the Government amendments that stand in my name. I have already added my name to two Opposition amendments. As we do not have a great deal of time to discuss some quite complex issues, it will be helpful to set out what those issues are so that we do not have so many interventions when the person who is being intervened on is agreeing with the person making the intervention, as happened several times to the Opposition spokesman.

I think that an ordinary, intelligent person from the outside world who is listening to this debate would be rather baffled as to what is causing us so much concern. It has seemed to me for some time that we are in complete agreement on policy and there is no disagreement between us on the principles of the very great need to protect national security and the equally great need to protect the rule of law, the principles of British justice and all the values that we seek to uphold. We have spent the entire time trying to work out a process for reconciling those principles.

The Opposition spokesman entirely agreed with the interventions by the right hon. Member for Salford and Eccles (Hazel Blears) and my hon. Friend the Member for New Forest East (Dr Lewis), who both put forward the principle that we must find some way of trying these cases properly so that everybody knows that there is justice and that a judge has been able to reach a conclusion on the merits or otherwise of the allegations made. Nobody has yet got up to say otherwise. The real critics of this Bill—I do not think that they are Members of this House—say that, somehow, it is a lesser evil to keep paying out millions of pounds in order to not extend the principle of closed proceedings further than it already exists in British law. The idea seems to be, “What a pity. We hope that none of the millions will go to bad causes,” although I do not think that that argument has an advocate in this place.

What we are doing—we have been having this debate for months—is discussing amendments that would underline the fact that this is a judge-made decision, made with proper discretion and taking the right things into account, and that closed material proceedings will be used only in a very small number of cases that would give rise to issues of national security if they were held in open court.

[Several hon. Members]

rose—

[Mr Clarke]

I shall start giving way in a moment and will do so at least as frequently as my opponent, the right hon. Member for Tooting (Sadiq Khan).

I will not use my own words to make the general case for the measure. I think I am in agreement with the Labour party, the Liberal Democrats and, I hope, my own party, or at least the bulk of it—that is sometimes the least certain proposition one can make in British politics these days. A collection of people whom I admire wrote to The Times a few months ago:

“In national security matters our legal system relies upon a procedure known as public interest immunity. Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.

This procedure is resulting in a damaging gap in the rule of law. To protect national security evidence from open disclosure the Government is forced to try to agree substantial settlements with claimants who have not had the opportunity to prove their case. Civil damages claims made against the security services are not therefore being scrutinised by a judge in a court.

It was to resolve a similar problem that previous Governments introduced Closed Material Procedures (CMPs) in immigration and control order cases, and courts have ordered them by consent in the past.

CMPs are not ideal, but they are a better option where the alternative is no justice at all. The Special Advocates who operate within them are more effective than they admit…and the Government loses cases in these hearings.

We believe the Government is right therefore to extend the availability of CMPs to other civil courts. This will ensure that the security and intelligence agencies can defend themselves against allegations made against them, that claimants are given the greatest opportunity to prove their case, and that concerned citizens will have the benefit of a final judgment on whether serious allegations have foundation.”

That puts the general case impeccably. One of the signatories was Lord Reid, the former Home Secretary, which is not too surprising given that most Opposition Members who are former Ministers with experience of dealing with these matters are pretty supportive of the Government and have been throughout, particularly those who are still up to date because they are on the Intelligence and Security Committee. Another signatory was Lord Mackay of Clashfern, who was a Conservative Lord Chancellor many years ago, but who was the most independent Lord Chancellor I can recall. He is an impeccable lawyer and a man whom no one could accuse of not having regard to the rule of law.

I stress that the former Lord Chief Justice, Lord Woolf, whose name has entered the fray again today, is a great defender of personal liberties who invented, I think, the whole concept of judicial review by which Governments are now held to account better by the courts for ministerial decisions. I have great respect for his opinion and today—this is my final quote before I start to give way—he has written:

“What is important is that the operation of…CMPs should be under the complete control of a judge. That the Government has now given him that control is to be welcomed. The Bill now ensures that we will retain our standards of general justice, while also putting an end to the blindfolding of judges in this small number of cases.”

I think that we all agree. There may be some rare exceptions from the ultra-liberal end of the left or the right, but by and large practically everybody in this House agrees with that case. What we are arguing about now is the fact that every time we table an amendment, further amendments are tabled in order to make it more practically difficult ever to have a CMP. The lawyers who are persuading various groups to table those amendments and who are drafting them for them actually think that the law as it stands is perfectly satisfactory, but they keep trying to invent fresh conditions, tests and processes to get in the way of CMPs.

The Litvinenko inquest is proceeding under the old law. I gave in to all the lobbyists who said that none of this should ever apply to inquests. In inquests, secrecy must therefore remain the order of the day so far as the coroner, the family and everyone else is concerned once a PII has been applied for and granted. I do not think that that should apply to civil claims, but people will no doubt try to persuade me that it should.

[Jeremy Corbyn (Islington North) (Lab)]

I thank the Minister for giving way and for the way in which he is trying to present a not very strong case. If we have a Security Service, it must be accountable, and if we have a criminal law process, it must be open. The process that is being introduced and previous processes end up, in effect, with people being criminalised in secret without knowing the full case against them. Does he not accept that there is a danger in the process that he is presenting?

[Mr Clarke]

The Bill most emphatically does not apply to the criminal process. I would be against any evidence of which the offender was not aware being given in a criminal case. That gets us into the control order problem, which is that sometimes there is no evidence in a case, but responsible people are terrified of the prospect of the person being left at liberty because we cannot prosecute. However, that is for another day. I do not believe that there can be a criminal case with secret evidence. I quite agree about that.

In civil cases, I would prefer there to be open evidence all the time. I particularly agree with the hon. Member for Islington North (Jeremy Corbyn) that the security services must be accountable to the courts and to Parliament wherever possible. At the moment, they are not accountable to the courts, because all the material that the Government want to bring in their defence cannot be given in open court. By definition, this is not evidence about our being involved in torture, rendition or anything like that. We deny that we are and most of the allegations are not that we have done such things, but that we have been complicit in another agency doing them. The evidence that we are talking about is evidence that the security services and their lawyers believe would enable them to defend the action and refute the allegations. At the moment, because we cannot hear such evidence in closed proceedings and because it cannot be heard in open court, it is not heard at all. We just offer no defence and pay out. If we have this procedure, it will make the services more accountable to the courts.

The other half of the Bill greatly strengthens the work of the Intelligence and Security Committee, which I approve of, by making it a proper Committee of this House and by strengthening its powers. I agree with the hon. Member for Islington North that we must reassure the public that we are defending our values by the most reputable methods and that we are respecting human rights. There must therefore be accountability to the courts and to Parliament.

[Several hon. Members]

rose—

[Mr Clarke]

I will give shorter answers if I can. I will give way to a Member on my side of the House.

[Sir Richard Shepherd (Aldridge-Brownhills) (Con)]

My right hon. and learned Friend has come against the rock of the special advocates. They have looked at this business and rejected it universally. They are the ones who are supposed to carry these court cases through and they do not like the proposal. I do not like it and, as this debate progresses, I think we will find that many more Members of this House do not like it either.

[Mr Clarke]

I thought we were doing all right with this Bill until the special advocates came out with their remarkable evidence to the Joint Committee on Human Rights. I agree that that got me into a lot of trouble. I do not understand why they take that ferocious view. As I have demonstrated before with plenty of quotations, they do win cases. One would think that they are powerless, but they do succeed. The judges accord to special advocates much more power of persuasion than they seem to accord to themselves, because judges want to have a special advocate to help them test the evidence when they are reaching their conclusion.

Of course, special advocates act on behalf of the claimants, as do most of the people who make these objections. I am not accusing them, because their motives are the highest and most honourable, but they have got into a frame of mind where they think that anything that is not advantageous to the claimant must be bad. Even at the height of my enthusiasm for human rights and the rule of law, I cannot get myself into that position. Claimants should be obliged to prove their case and I believe that special advocates are the most effective means that we have of testing the Government’s case on behalf of claimants.

[Dr Huppert]

The Minister made the excellent point that none of this would apply to criminal cases in which somebody’s liberty could be at risk, which is important. It is clear that there will not be closed information in such cases. Will he confirm whether civil habeas corpus cases will be covered? Could there be closed proceedings in such cases, which could affect somebody’s liberty?

[Mr Clarke]

My off-the-cuff reaction is to say no, but I confess that it is an uninformed one, so I think I ought to check that and return to it later.

[Several hon. Members]

rose—

[Mr Clarke]

I will give way once or twice more, then I must resume my speech, otherwise this will turn into a question-and-answer session. I must finish my speech, as the right hon. Member for Tooting did with great difficulty.

[Yasmin Qureshi (Bolton South East) (Lab)]

May I reiterate what the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) said? If special advocates, who are independent people and fully aware of cases such as those in question, are expressing reservations and think the provision is wrong, should the Government not take notice of that?

[Mr Clarke]

We have taken notice of it, but I do not understand why special advocates seem to be taking up the arguments of people who say that we should never allow anybody to consider the evidence in question. I never thought that PIIs were a perfect process, but the critics have suddenly decided they are now that we have brought forward CMPs. If there is a PII, the judge cannot take account of such evidence, claimants and the defence cannot use it, and the lawyers do not know about it. That is held up to me as a superior position to the one we are putting forward, which will mean that the judge can consider that evidence.

[Rory Stewart (Penrith and The Border) (Con)]

Will the Minister tell us in broad terms what concessions he has made since the Bill was conceived, and whether there are any further concessions that he can make to address any concerns?

[Mr Clarke]

I was about to move on to that point, having made the general case. Every time I make concessions, they are pocketed and there is a fresh set of demands. I have known that to happen before, but never on the same scale as with this Bill. I will try to explain that when I get on to the matter.

[Caroline Lucas]

I see that the Minister is about to get some advice from behind him on habeas corpus cases. The advice we have received is that they are regarded as civil actions, and that habeas corpus could therefore be at risk in future.

The Minister should not get carried away with the idea that everybody supports the change. Some parties, such as the Green party, do not. That will not surprise him, but the Liberal Democrat conference did not support it, either. It talked about it as a serious risk to public trust and confidence. Many people out there do not support the change or think it is necessary, and I have yet to hear any real argument as to why it is.

[Mr Clarke]

I respect the hon. Lady’s sincerity, and she represents those who are against the whole policy. I have met such people outside—to use a flippant phrase, some of my best friends are human rights lawyers, and I have met people who say that the whole idea of CMPs is so bad that it is a lesser evil to keep paying money to the ever-mounting number of people coming forward. That is a judgment for the House to make, but the three political parties do not contain many members who agree with that, and I do not think the public agree with it. I would prefer to see a judge test the evidence and come to a conclusion.

[Several hon. Members]

rose—

[Mr Clarke]

I will move on, but I will remember who I have not given way to.

I have been given advice on civil habeas corpus cases, and I will read it to the House. It says, “We can’t envisage any such cases.” I find that inconclusive, so I will make further inquiries. The question bowled me middle-stump, so I have some sympathy with the unfortunate lawyer in the Box who has had to decide what on earth we can say, and I think we ought to be allowed to go away and consider the matter.

On the point that my hon. Friend the Member for Penrith and The Border (Rory Stewart) made, Lord Woolf mentioned in his letter this morning that before the Committee stage, and again last week, the Government have tabled a lot of significant amendments that, in our opinion, meet every practical objection that has been made by the Joint Committee on Human Rights, the Opposition, my colleagues in the Liberal Democrats and my noble Friends, who defeated us several times. We accepted quite a lot of those defeats, which were improvements to the Bill.

I have tabled four more amendments today and added my name to two Opposition amendments. I considered the point about equality of arms; I think it is slightly overdone but Government Members have added their names to two Opposition amendments so that any party to the proceedings can apply for a declaration that there should be closed material procedure.

Let me remind hon. Members where we have got to. There has been enormous movement since the Green Paper, and quite a big movement while the Bill has proceeded through the House. The court may grant such an application and order a CMP if it—

[Several hon. Members]

rose—

[Mr Clarke]

Let me remind hon. Members of the position we have reached and then I will give way.

--- Later in debate ---

[Zac Goldsmith (Richmond Park) (Con)]

I welcome my right hon. and learned Friend’s comments. Will he tell the House whether there is a clear and understood definition of the term “national security”?

[Mr Clarke]

There is no definition, because all attempts to define it have got one into worse difficulties.

It is possible to exclude evidence from a case altogether under the existing public interest immunity procedure; the Bill does not touch that. The present PII law will be completely unaffected by the Bill, so people could still go for a PII. One is obviously being actively sought at the moment in the Litvinenko inquest, although I know that only from what I read in the press. That kind of exclusion could be claimed on the ground of damage to international relations, if the Government of some third-party state would be upset if certain evidence were to be published. That goes beyond questions of national security and into total secrecy, allowing the Minister to withdraw the whole blasted thing from the proceedings and not letting even the judge use it. That measure goes much wider. Such exclusions on wider grounds happened under the previous Government.

We are sticking to national security, however, and judges, using the completely unfettered discretion that we are now giving them, will no doubt have regard to what I say. What we have in mind are things that would cause damage to national security, by which we mean the safety of our citizens, our attempts to counter terrorism, and threats to international order among the wider public. I can assure the House that I am not in favour of excluding ministerial pigs’ ears. I am sure that the previous Government made more of them than we did, but I do not believe that that sort of thing should be put away in closed proceedings under any Government.

[Mr George Howarth]

Is not national security rather like reasonable doubt—two well understood English words, as a judge advised the jury in a trial the other week?

[Mr Clarke]

Amendments have been tabled to Bills of this kind to try to define the concept, but that leads to more trouble than it is worth. I entirely agree with the right hon. Gentleman that reasonable doubt is a very good comparison.

[Sir Malcolm Rifkind]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will in just a second. I am sorry not to give way to the Chairman of the Committee at the moment, but I will before I finish.

I think I have made my point that people are grasping at the straws that keen human rights lawyers have presented to the critics of CMP, and trying to bring in a process to prevent them from happening. That would be the effect of most of the amendments. We have accepted the spirit of the JCHR’s amendments, and we have addressed the questions on unintended consequences.

Let us consider amendment 30 and the Wiley balance. I have just mentioned the unfettered discretion that we are giving to judges. Should we add to that discretion a confinement so that a judge would have to apply what is known as the Wiley balance, which is used in PII? I will not repeat the arguments used by my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the Intelligence and Security Committee and, I think, the right hon. Member for Salford and Eccles. PII is not the same.

The amendment that the Opposition have been persuaded to table is not actually about the Wiley balance. Whoever drafted it has realised that that would not be quite good enough for their purposes, so they have altered it by adding the words “fair” and “open”. I do not understand how, having decided that national security would be at risk and that that would be relevant to the issues, and that such a measure would be necessary for the fair administration of justice, someone might then decide that they preferred open justice and that the evidence should be given in public anyway. That is a complete non sequitur, in a way. It would be slightly absurd to do that. It would be like saying to the judge, “If you agreed with the Green party and were against the policies in the Bill in the first place, you can now throw everything out anyway because you need to consider whether you would prefer open justice, after those three conditions have been satisfied.” That would be a slight non sequitur, and it is also a bit deceptive—not deliberately; I am not accusing anyone of acting improperly—to describe this proposal as the Wiley balance. It is the Wiley balance with bits added, which some ingenious lawyer has come up with to try to put a spoke in the wheels.

[Mr Andrew Tyrie (Chichester) (Con)]

I am very grateful indeed, in the circumstances, to the Minister for giving way. Did I hear him correctly? Perhaps I will give him the opportunity to correct the suggestion, which I think he pretty much made a moment ago, that the remaining opposition to the Bill has been got up by a few human rights lawyers. Will he explain, which he has still failed to do, why the only people who really understand the system—the people who have experience both of PII and CMPs; that is, the special advocates—have concluded absolutely clearly and unequivocally:

“The introduction of such a sweeping power could only be justified by the most compelling reasons and, in our view, none exists.”?

[Mr Clarke]

I do not think that I would conceivably use the language that my hon. Friend tries to attribute to me. Human rights Members are fervently opposed to the whole idea of CMP. They are extremely able lawyers and draftsmen. I am left in wonder and admiration at their ingenuity in producing an endless procession of amendments, so that every time their principles are adopted by the Government in amendments at various stages, a fresh set of amendments is tabled introducing new concepts that are designed to elaborate on the process. That is enough praise for my opponents, but it is ingenious.

We are not putting in the Wiley test, because we have three perfectly effective tests and complete discretion for the judge anyway. The Wiley test is used for PII, which is a quite different process that tries to exclude the evidence entirely from the judge, the claimant, the lawyers and everybody. PII is an application for total silence. We do not need to put the test in for that.

Amendment 31 is more difficult, as it requires that a CMP may be used only as a last resort. The circumstances I have described are getting pretty near to the last resort. We expect only a handful of cases, because we do not think our intelligence agencies will be sued very often. They are strictly enjoined to follow the principles of human rights, and not to connive at torture and everything else, but we do not know, and the conditions we have applied make it clear that we will only ever have CMPs in national security cases, unless a future Government try to relax them.

The trouble is that the last resort argument will undoubtedly be used for going through the whole PII process before starting on CMPs, and there are some people who want to do that. They say that they do not like the fact that the Secretary of State has to consider an application for PII. They want the Secretary of State to go through the whole process. They do not like the fact that the court has other tests for going to a CMP. They want the court to go through the whole PII process before it gets there. Why? Because it could take months or years. The Guantanamo Bay cases had hundreds of thousands of documents—it is a very elaborate process.

[Mr Julian Brazier (Canterbury) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will in just a second.

There is a serious risk, in our opinion and in the opinion of those who have considered the drafting, that it will introduce a huge, expensive and discouraging process. David Anderson, the independent reviewer of terrorism legislation, has described this sort of clause as requiring the court to bang its head against a brick wall. I think the Lords Constitution Committee also said that it did not want full PII. The hon. Member for Hammersmith (Mr Slaughter), who led for the Opposition, said this:

“None of us wants exhaustive PII or a Minister tied up for a year exhaustively going through paperwork, if it were obvious to all concerned that it was not needed”.––[Official Report, Justice and Security (Lords) Public Bill Committee, 5 February 2013; c. 167.]

We are resisting amendment 31 because we think ingenious lawyers will use the argument that we have to settle down to a few years of process and paperwork to satisfy the requirement exhaustively to consider every other possible way of trying the case.

[Sadiq Khan]

Does the Minister accept that good judges will throw out frivolous applications by ingenious lawyers? If he is concerned about judges spending too much time considering documents, why does Government amendment 47 put the same obligation on the Secretary of State to consider PII, which we are seeking to put on the judge? All we are asking is that the judge considers PII, and the Government amendment requires the Secretary of State to consider it. Rather than the defendant in a claim having to consider, why not the judge?

[Mr Clarke]

Let us not make this a competition about which of us most trusts British judges to make reasonably sensible decisions. I have just described how we have put the whole thing in the hands of the judge, and I think that the right hon. Gentleman agrees that a British judge will instinctively want an open hearing and will have to be persuaded to go closed, and he will only do so as a last resort—to use a colloquial term—because his or her preference will be for open justice. There would have to be a very compelling reason for going closed.

--- Later in debate ---

[Patrick Mercer (Newark) (Con)]

On a wider point, has my right hon. and learned Friend thought how much comfort this will give to their cause, in the world of propaganda, when CMPs are used against terrorists?

[Mr Clarke]

I have, but with the greatest respect to my hon. Friend’s expertise in this area, I must say that one of the things that most troubles me, as the Minister enthusiastically in charge of the Bill, is not just the need to save the money or the irritation of being unable to defend claims, but the considerable damage done to the reputation of our security services because they are unable to defend themselves. The House always insists on being persuaded that the security forces abide by human rights and do not go in for malpractice or unlawful rendition and so on, but their inability to defend themselves against allegations that they have done so is undoubtedly used by our enemies against our security services, and they are very conscious of it—as are our allies and those with whom we co-operate in the security field.

[Several hon. Members]

rose—

[Mr Clarke]

In order to avoid losing the thread—as far as there is one—of the Opposition’s amendment, I will make some progress.

Amendment 38 would allow the court to order the disclosure of sensitive material, notwithstanding the damage that would be caused to national security, even if the CMP would have been fair without the disclosure. That would make the Bill completely ineffective from the point of view of the main policy, on which we are all agreed, and would give the courts the sort of power that prompted our allies’ concerns following the Binyam Mohamed case. It would seem to allow the judge to look at some material, determine that it was national security-sensitive but then say that there were wider considerations and disclose it anyway. Of course, if such a disclosure was ordered, the Government would have to withdraw from the case and seek to avoid further disclosure in claims for damages.

[Several hon. Members]

rose—

[Mr Clarke]

I must conclude. I apologise to those distinguished Members to whom I have not given way.

I remind Members of the extraordinarily important objectives that we have for the Bill and which the Government’s amendments support. I do not think that the Opposition wish to destroy the policy of the Bill, but they have tabled amendments that would have that effect. The Bill will ensure that the increasing number of civil claims brought against the Government alleging British involvement in kidnap and torture are for the first time fully examined by the courts and that the agencies are better held to account for their actions both by Parliament, through the Intelligence and Security Committee, and in the courts.

The Bill will enable us to reassure the Heads of State of our closest intelligence-sharing partners that we will keep their secrets. The fact that we cannot do this at the moment has already led to the US putting measures in place restricting intelligence exchange and has seriously undermined confidence among our key allies. As I have already mentioned, the Bill will also stop us having to make unnecessary payouts to people who have not proved their case and reduce the risk of British taxpayers’ money being used to finance terrorism.

We have revised the Bill as far as we can. We all agree on the rule of law and with the principles of justice in this country, but I invite the House to apply a modicum of common sense and a sense of national security to its considerations. We have debated this endlessly. Never can a Government have been quite so responsive to the points put to them, and I fear that I must resist the further pressure.

[Dr Hywel Francis (Aberavon) (Lab)]

It is a pleasure, and it is certainly a challenge, to follow the Minister without Portfolio.

On Second Reading, I welcomed the improvements that had been made by the House of Lords, but expressed the view that more significant improvements were required. I hoped that the Bill would be amended in Committee to make it compatible with the basic requirements of the rule of law, fairness and open justice, which, of course, the whole House would wish to endorse. Regrettably, however, the amendments made by the Government in Committee have removed or watered down many of the improvements made in the other place.

In an earlier report on the Bill, the Joint Committee on Human Rights, which I have the honour of chairing, considered carefully whether the Government’s amendments gave effect to its recommendations. In its second report, published last week, it reached the clear conclusion that they did not, and recommended further amendments. The day after we agreed our report, the Government tabled further amendments. I think—I choose my words carefully—that that was regrettable. We would have liked to scrutinise those amendments properly. The Minister, however, told the Daily Mail that the Government had now met every sensible legal objection that there could be to the Bill. I welcome some of the latest Government amendments, as does my Committee, but I must add that they meet only one of the seven main concerns expressed by the Committee in the report published last week.

Let me deal first with equality of arms in the ability to apply for a CMP. We welcome and support the Government’s amendment, which is the only one that gives effect to a recommendation in last week’s report. If we are to have CMPs in civil proceedings, it is vital for individuals such as torture victims who are bringing cases against the Government to have the same opportunity as the Government to apply for them, but how does the Minister propose to ensure that such claimants are aware that a CMP might help their case? Can he reassure us that special advocates will be appointed whenever the Government apply for sensitive national security material to be excluded from a case on grounds of public interest immunity, and also that those advocates will be able to communicate to excluded parties the fact that a CMP might help their case? I think that those are both very important questions.

Let me now deal with judicial balancing at the “gateway”—the so-called Wiley balance, which has already been discussed a great deal today. I support the amendment proposed by the shadow Justice Secretary, my right hon. Friend the Member for Tooting (Sadiq Khan). In fact, I shall be supporting quite a few of his amendments, not because of any party loyalty but because he is supporting my Committee’s recommendations.

The Government’s amendments removed from the Bill the Wiley balance between the degree of harm to national security on the one hand and the public interest in the fair and open administration of justice on the other. That important safeguard had been inserted by the House of Lords, following a recommendation from my Committee. As the Committee explained in its report, the purpose of our recommended amendment inserting the Wiley balance was to ensure that the court considered the public interest in the fair and open administration of justice.

[Dr Francis]

I welcome the hon. Gentleman’s point. These are very important issues, and the Committee was cognisant of them.

To return to the point I was making, that purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. By deleting the Government’s new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and reinstating the Wiley balance as a precondition for a CMP, the amendment would restore a crucial safeguard for open justice.

On last resort, I support the amendment tabled by the shadow Secretary of State for Justice, which would give effect to my Committee’s recommendation. The Committee, in its report last week, explained why it does not accept the Government’s reasons for removing the “last resort” amendments made by the House of Lords, which are based on a misunderstanding of the effect of the provisions. The Government’s commitment to ensuring that CMPs are available only in those cases where they are necessary is most welcome. However, in order to give effect to that intention the Bill must be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means.

The requirement that the court consider whether a claim for PII could have been made must also be reinstated. The Government’s latest amendment, which requires the court to consider whether the party applying for a CMP considered applying for PII, does not go far enough, because it does not require the court itself to consider whether PII is a suitable alternative to a CMP.

[Mr Kenneth Clarke]

As I have already argued, that sounds as though it is demanding that both the Secretary of State and the court go through the full process of PII before even getting on to applying for a CMP. From what the hon. Gentleman is saying, it sounds as though that is exactly what the Committee is contemplating, but how can that be justifiable when all the people concerned in some of these cases will rapidly come to the conclusion that they are wasting time, money and effort on a totally unnecessary exercise and it would obviously be more sensible to go into a CMP and consider the nature of the evidence?

[Dr Francis]

I am sure that—

--- Later in debate ---

[Hazel Blears]

The hon. Gentleman, as ever, speaks with passion on these issues and I respect his point of view. I was a lawyer a long time ago and I understand how important it is to have open justice, but it is also important to get the balance right.

Amendment 30 is about the Wiley balance. I have some difficulty with the amendment because I feel that the Wiley balance is perfectly appropriate for PII, because it is used to decide whether to include or exclude material and whether or not there should be an open hearing. It strikes me that in relation to closed material proceedings there is a more complex and nuanced decision to make which contains different factors. I am keen that we get a balance and that we get the balance right, but I am convinced that the Wiley balance is one that we can simply transpose into the new legislation and that it will be effective.

Amendments 34 and 37 are about whether every other method has to be exhausted before we can get to a closed material proceeding. I am disappointed that there is not more agreement across the House on this. We all want to see whether cases can be dealt with in another way, because closed material proceedings should be the absolute minimum—an irreducible core, as I put it, of cases. I wonder whether the determination could be made by the Secretary of State, having considered whether PII would be suitable, and whether there could be some mechanism for the court to exercise a scrutiny function on whether the Secretary of State’s consideration had been more than cursory.

There will be concerns if the Secretary of State just ticks a box and says, “I’ve considered PII, in my bath”—as the hon. Member for Chichester said—rather than going through a proper process. I would like to see, whether or not we end up in ping-pong with the Lords, something in the Bill that says that the court has to take a proper look at the Secretary of State’s consideration of PII. That would not be exhaustive, but would have some substance to it. I ask the Minister to consider taking that into account.

[Mr Kenneth Clarke]

The judge will have to be satisfied that the Secretary of State has considered the matter. He will not take that as just having thought about it in the bath; that is not how the judge will test whether the Secretary of State has seriously considered it. The judge has such a wide discretion that he could decide that in the fair and effective administration of justice, for some peculiar reason the case should be PII; he should not be listening to a CMP application. That would be one reason for using his discretion. Having listened to the two principal advocates of these further tests, I think they are advocating that the court and the Secretary of State should go through the whole process of PII first. That is not what the Opposition intend, but that is what their amendments would do. The Government have met the right hon. Lady’s case perfectly satisfactorily in the Bill.

[Hazel Blears]

I hear what the right hon. and learned Gentleman says. He has been very inventive and creative in trying to table amendments, and it would not be beyond him to put something in the Bill that reassured people that there was a proper check on whether the Secretary of State had properly considered whether other methods could be used. I leave him to reflect on that.

Amendment 70 seeks to add inquests to the Bill. It originates from my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) and he will speak to it with his depth of knowledge, experience and appreciation of the issue, and I simply say that I will support him on it 100%.

It is important in a justice system for people to have sufficient notification of the circumstance to be able to give instructions, but at the moment the bar is set a little high, because there may well be circumstances in which the gisting goes right to the heart of national security. Therefore, by giving a gist that is wide enough to enable instructions to be given, the national security case is given away. Again I wonder whether something could be included about there being a presumption in favour of gisting that could be subject to rebuttal in circumstances that merited it. I would feel more reassured if there were something along those lines. The process adopted so far has been an attempt to try to get some agreement and consensus on these issues. It is difficult to do so, but the issues at stake are so important, both for our national security and for the integrity of our justice system, that we need to keep trying to see whether, on a couple of those issues, even at this stage, there is room for a little more movement to get us to a better place.

--- Later in debate ---

[Mr Davis]

The hon. Lady is of course right, but let me come to the point that I was driving towards, which is that none of the systems that we are talking about is perfect. PII clearly has weaknesses. Everyone who has spoken has said something to that effect, and the hon. Lady was particularly correct about that; there are weaknesses to PII. We should not accept that that is the perfect outcome either.

[Mr Kenneth Clarke]

My right hon. Friend rightly says that in PII, because people do not like excluding all the evidence, there is a perfectly legitimate argument about how much we can gist and how much can be redacted, and then it can be put into the open court. But everything that does not get there is entirely left out; it is not available to claimant, judge, lawyers or anybody else. In a CMP, exactly the same thing can be done, because the judge will be required to consider how much we can gist, how much we can redact, and what can be shared with the defendant. The only difference is that in a CMP, the evidence, including, as my right hon. Friend said, some things that might be absolutely key to the case that cannot unfortunately be disclosed, can be considered by the judge. PII shuts out all that which is not possible to gist. With a CMP, there can be all the gisting and redaction that one wants, but all the evidence is considered.

[Sir Malcolm Rifkind]

rose—

--- Later in debate ---

[Dr Huppert]

None of us wants to see Ministers’ time sucked up for a year reading documents and signing them. That would not be in anybody’s interests.

Why do we believe in the concept of last resort? The Government have an advantage in these cases because they know what the evidence is and the other party does not. That is why we want more balanced processes to be tried first. That changes slightly if the other party has applied for the CMP. To take the case that I advanced earlier of an ex-employee who knows of a document, we should probably say that a CMP would be the preferred option for them, rather than allowing the Government to keep something away. We want a slight bias away from the Government—not a huge bias, but a slight one—to make up for their advantage of being able to see all the documents.

[Mr Kenneth Clarke]

On the hon. Gentleman’s point about the last resort, I am grateful that both the Labour party spokesman and the Liberals who have spoken so far have agreed with what we have said. We do not want a statutory provision that requires people to go through immense procedures to eliminate every other way of dealing with a case. Unfortunately, there are later Opposition amendments that would have that effect. It is very late in the day. In conversational terms, we are all agreed that closed proceedings are a last resort. We want closed proceedings only when national safety is in danger and where there is no other sensible way of trying the case. I will go away and consider the matter, but we are rather late in the proceedings. Of course, the rules of the court still have to be made and it may be possible to address the matter there. In practice, there is not much between us, because judges and lawyers will not want to go into closed proceedings other than as a last resort. What we do not want is to introduce a process that involves months of time and vast sums of money, the intention of which is really to stop anybody taking on a closed procedure at all.

[Dr Huppert]

I thank the Minister for saying that he will look more carefully at the matter. However late in the day it is, we would be grateful for any changes he could make that might take us in the direction of what has been suggested by the JCHR and others.

While the Minister is in the mood for looking at other issues, can he be absolutely clear about confidentiality rings? This matter was raised earlier, so I will not go into it. As was discussed in Committee, there is a change in the wording that has led to the impression that the test is about the material rather than the disclosure. I hope that it will be made very clear that there is no sense in which that would apply to confidentiality rings. I believe that Opposition amendment 28 is intended to explore that issue.

I look forward to supporting any of the amendments that would take us towards the proposals of the JCHR. I look forward to amendment 1 being debated and for any opportunity to test the will of the House on that issue.

I was surprised to see amendment 70 and I look forward to the explanation from the right hon. Members for Wythenshawe and Sale East (Paul Goggins) and for Salford and Eccles (Hazel Blears). I am pleased that, owing to the influence of the Liberal Democrats, inquests were taken out of scope after being included in the original proposals. It is important, particularly at an inquest, that the family knows the grounds for the conclusion. It would be very unsatisfactory for people who had lost a loved one to be told, “We cannot tell you why it happened.” I am pleased that inquests are not included. I am surprised that there is a move to put them back in. I had hoped to ask the shadow Secretary of State whether he supported that move, but I suspect that I can guess the answer.

Amendments 39 and 40 relate to gisting. My hon. Friend the Member for Edinburgh West (Mike Crockart) and I tabled similar proposals in Committee. I find it hard to see why there would be many cases in which a judge would not want a gist to be made available. We want that to happen. I understand that there may be cases in extremis where no gist would be possible. It would be helpful if the Minister made it clear that it is the intention that judges should always gist to the maximum extent possible. As long as that is said in this place, I think that we will be able to make progress.

--- Later in debate ---

[Dr Huppert]

I think that it is the same as the right hon. Gentleman’s alternative would be in a criminal case for which the evidence needed to convict somebody could not be gathered. If one cannot gain that evidence, one cannot proceed. It is important that that applies when people are being deprived of their liberty. I made the same argument when we were getting rid of control orders. One must try to provide the evidence that is needed to convict people. Failing that, I do not like the idea that people are simply held for many years, with very little freedom. I believe that control orders had 23-hour curfews. That is an extreme infringement of liberty. I know that we are not discussing criminal issues principally, but there are many cases in the criminal system in which the police are sure that somebody is guilty, but they cannot find evidence that may be used in court. None of us would want to see such cases proceed and the same should apply to any other serious deprivation of liberty.

I look forward to the votes. It is not clear to me exactly which matters we will have the opportunity to vote on. I will stand by all the votes that I cast in Committee, where we came very close to changing the Bill, but never quite close enough. I think that we won one vote on a new clause being read a Second time, but the decision was reversed immediately afterwards by the Chairman’s casting vote. I hope that we will change the provisions either so that we do not have these proceedings, which would be my ideal, or we at least move them closer to the proposals of the JCHR. I accept that we should not keep every word of what the Joint Committee suggested and that tweaks could be made. I hope that the Minister will consider that at the point at which he confirms the position on habeas corpus and my other questions.

[Mr Kenneth Clarke]

I may have misheard, but the hon. Gentleman is not rejecting closed material proceedings altogether, is he? He would be the first person in the debate who has gone that far if that is what he is saying. He suggests that he might vote against clause 6. Two Members from smaller parties have tabled an amendment that would delete that clause. That would take us right back to square one after we have spent the last three hours agreeing that there are cases in which national security requires there to be closed proceedings.

[Dr Huppert]

I am sure that the Minister will be aware that I and my hon. Friend the Member for Edinburgh West did press for a vote in Committee to remove clause 6. Sadly, it was defeated.

I look forward to hearing the Minister’s responses on habeas corpus and the other points that I have made because what he says may well affect what happens, and liberty is a very important principle.

--- Later in debate ---

[Paul Goggins]

My hon. Friend knows me well enough to know that I do not dismiss critics of the Bill. I listen to them carefully; I just happen to disagree with them. The same applies to my hon. Friend: I listen carefully to what he says on this issue. Sometimes we agree and sometimes we disagree, and I sense that we will disagree on this. I am making a plea for further attempts to achieve consensus, but I am making it clear that if there is no consensus then I think that my right hon. Friend the Member for Tooting is setting the bar too high.

On inquests, I am sorry that the Minister did not take an intervention from me earlier. I would be delighted to take an intervention from him at any stage in the next couple of minutes. I am grateful to Members who supported my amendment 70, which would make closed material proceedings available for inquests as well as civil proceedings. We just need an explanation from the Minister on why the Bill proposes CMPs for civil cases, but does not propose them for inquests. That was in the original plan. He knows that senior members of the Government and senior judges think it is nonsense and inconsistent to have one and not the other.

[Mr Kenneth Clarke]

I think we have had this exchange before. The explanation is simple. The Government were faced, in Parliament and from all the lobbies, with overwhelming opposition to extending CMPs to inquests. We have said throughout today’s proceedings that we have been trying to concede as far as possible, and that if people did not want to trust coroners with these powers and the ability to take into account this information, we decided it was impossible to maintain it, particularly after recent controversy regarding coroners and inquests. All kinds of unlikely organisations were seen to be believing that we were closing down inquests, getting rid of juries and so on, so I am afraid that we took the line of least resistance. The result is that total secrecy and silence will continue to be the case in inquests whenever national security is involved.

[Paul Goggins]

The purpose of tabling amendment 70 —again, I am grateful for the support of hon. Members—was not that I thought I would win the day. Clearly, the Minister is not going to support it. I tabled the amendment to encourage him, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) who is sitting next to him and anybody else who is listening. This issue will come back and either his Government or preferably a Government that I support, will have to deal with it.

--- Later in debate ---

[Paul Goggins]

My right hon. Friend is absolutely right. If CMPs are to be available in civil proceedings, they should certainly be available in inquests. There are difficulties concerning families and bereaved relatives, but in the end this about a search for the truth. If there is information and intelligence that reveals the cause of a death, the coroner should know it, even if it has to be kept as secret intelligence.

The Minister himself made the perfect argument today. He went on the radio at lunchtime and made the argument about the limitations of having to have just PII, rather than CMPs. What was the example he gave? The Litvinenko inquest. There are more than 30 historic inquests in Northern Ireland waiting to be resolved. Whether the deaths involved the Army or the police, all of those issues will be there. There will other inquests in future that will bring national security issues into play.

[Mr Kenneth Clarke]

The right hon. Gentleman has been very patient in listening to the whole debate. All the people who are more liberal than we are and who are denouncing CMPs, are defending the existing law. What is at the moment in controversy at the Litvinenko inquest is that what they are saying is superior to admitting the evidence and having it heard and determined by the judge. One has to bring in the present inquests or inquests will never have this material, because such a fantastic volume of opposition was excited by the proposal when we first put it forward.

[Paul Goggins]

I accept that the Minister felt under enormous pressure to make that concession. Anybody who doubts the minds of coroners and senior judges in relation to the test that will be applied need only look at the coroner in the Litvinenko inquest, Sir Robert Owen, and the comments he made last week. He said clearly:

“I intend to conduct this inquest with the greatest degree of openness and transparency”—

and that he would give the Foreign Secretary’s request for a PII certificate—

“the most stringent and critical examination”.

We ought to trust the coroner and the judges.

In the end, the search for justice is a search for the truth. A secret court is one where information and intelligence is either not considered at all, or where the Government and their agencies cave in and make a settlement where no case has been heard—that is secret justice. Closed material proceedings are not perfection, but we are not dealing with perfection; we are dealing with a difficult issue in a small number of cases. However, we are more likely to get closer to the truth if the judge has seen the relevant information than if nobody has seen it at all.

--- Later in debate ---

[Mr Kenneth Clarke]

With the leave of the House, I will respond on behalf of the Government. I will briefly address the comments of those Members who have, with great passion and sincerity, opposed the whole policy of the Bill; who think that closed procedures should not be permitted and are simply incompatible with our standards of justice; and who plainly wish things to stay as they are. They include the hon. Members for Brighton, Pavilion (Caroline Lucas) and for Hayes and Harlington (John McDonnell), and even the hon. Member for Cambridge (Dr Huppert) got very near to that at one point, rather to my alarm.

I share the exasperation expressed by many Members who are more supportive of the Bill that much of the opposition to it is based on the idea that the present law does not call for amendment and that what happens now is satisfactory. Three or four Members expressed the exasperation I sometimes feel in these debates, because a growing number of people who seem to be more liberal than me, at least on this point, think that PII certificates are the ideal way of handling these cases. Most of the people who have tried to argue that point with me outside the Chamber, I am quite sure, would not have defended the PII certificate system 12 months ago and instead would have attacked it.

As we—the Bill’s defenders—have repeatedly pointed out, the whole point of PII is to exclude from anybody’s use in a case the evidence that is sensitive. Of course, one can gist and redact such as one can, but what one leaves out is anything that obviously threatens national security, which is the very information that everyone says ought to be heard. I do not accept all those allegations. I would like the civil courts to be able to decide some more of those allegations. To those who, like the hon. Member for Brighton, Pavilion, are convinced that our security services have been torturing and mistreating people and that we are trying to suppress all kinds of outrageous allegations, I can only say that if we stay with the law as it is, none of that will ever appear in a court before a judge.

The problem at the moment is that where a Government wish to bring forward their records and witnesses to try to answer these claims, there is no closed material procedure in civil proceedings to enable them to do so. We used to think that the court did that out of its own volition, but I am afraid that there have been rulings making it quite clear that that is for Parliament to decide. I will not repeat what people said a few moments ago. The absolutism of the people on the ultra-liberal wing is quite extraordinary. They are demanding silence. They are demanding no judgment from a judge. They wish things to stay as they are. I ask them to reflect on the deeply unsatisfactory nature of that. It is not true that there are other countries where one can do that.

I do not think—I am open to correction—that there is any jurisdiction in the world in which someone is trying to create a procedure whereby one can bring in highly sensitive evidence of this kind in a civil claim against the Government. Somebody calmly said that the Americans allow that. I can assure them that the Americans are extremely alarmed about the fact that we are giving those powers to our judges and wish to be reassured that national security will be protected. As has been said, they are already reducing their co-operation with us, and they will reduce it further if they think that we are opening some kind of sieve in their information. Where they issue a certificate of state security it is not challengeable. People are bringing actions in our courts claiming that we are sometimes complicit with what they say American agencies have done because they cannot bring those actions in America. They come here under Norwich Pharmacal trying to get documents from us to support action in other countries because they think we have the only courts in the world where they might be able to get hold of American intelligence material—and to do so for other people. So in supporting our approach in principle, the Government, the Labour party and the Liberal Democrats are demonstrating how committed we all are to the rule of law, human rights and the wish to be accountable to our courts. We think that we can contrive a process that does secure national security and does respect the interests of our allies while allowing a judge to consider all the relevant evidence and give a judgment.

My next point will be the final one I make on this, because I realise that the right hon. Member for Tooting (Sadiq Khan) has to wind up the debate. I still hope that we get the widest possible all-party support on this important constitutional matter, and I think that the Liberals are with us. Nobody in this House has given views that are contrary to the interests of justice or anything of that kind, but we are almost quibbling about rather important amendments; we are talking about how we can best frame our response to the Joint Committee on Human Rights and so on without actually compromising the process and making it unworkable.

I had the formidable support of the Ministers in the former Government who were responsible for these matters at various times and in various ways: the right hon. Members for Blackburn (Mr Straw), for Salford and Eccles (Hazel Blears), for Wythenshawe and Sale East (Paul Goggins) and for Knowsley (Mr Howarth). I think that the latter was right in saying that I am probably the most liberal of the five of us on most issues that come before this House. I spent my time opposing the right hon. Members when I was in opposition and they still have not persuaded me that 90 days’ detention without charge was remotely justifiable—we sat up all night arguing about that. The fact is that we are moving to resolve a serious problem, and the Labour party should give careful consideration to whether they press these measures.

I am asked by Labour Members and by others whether there is any further that we can go. I have already described the number of amendments that we have made, and the huge discretion and control that we have now given to the judge. I have indicated that we will have a look at the rules of court. I cannot be persuaded that putting “as a last resort” in the Bill is not risky. The Wiley balancing test as it is on the amendment paper is not the Wiley balancing test but a stronger version of that test, and it has been argued about interminably. It is totally unsuitable for a closed proceeding; it is designed as a stiff test when one is proposing to take all the evidence out of consideration altogether.

I urge restraint on the Opposition, who claim to wish to be in government one day—needless to say, I regard that proposition with dread. If they take some of these objections to bizarre lengths when there is complete agreement on principle between us, I can say only that were they to succeed, they would regret it. I also think that, for the reputation of our security services, for the reputation of our justice system and for the confidence of our allies, it would be very helpful if we had the support of the bulk of the three major parties. I have tried to explain why people of utmost sincerity who take the more purist view are actually living in a dream world. We will do better in holding our agents to account by having this Bill.

[Sadiq Khan]

With the leave of the House, Mr Deputy Speaker, may I repeat what I said almost four hours ago by citing the words of the independent reviewer of terrorism legislation? As I said, the Opposition accept that there is

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

That is our position and we are not seeking to exclude part 2 from the Bill—to be fair to the Minister, he did not suggest that we were.

I just remind the Minister that when the Green Paper was published, many on both sides of the House thought that it was perfectly adequate. When the draft Bill was first published, some on both sides of the House thought that it was adequate. We did not think that, and we pushed for improvements. When the Bill was published, before it went to the House of Lords last June, many on both sides of the House, including the Minister, thought that it was perfect and in need of no amendment. The Bill has been changed on three or four occasions in a number of areas, not least by the changes made in the House of Lords. The other place sought to put into the Bill some of the recommendations made by the Joint Committee on Human Rights. Not all of its recommendations were put into amendments standing in the names of Cross Benchers, including Lord Pannick, but some were—the ones thought to be important in order to secure the checks and balances required in this Bill.

I remind the Minister that Labour Front Benchers have on no occasion sought to remove part 2 from the Bill. He will know, as he has been in this game far, far longer than I have, that we could well have won votes in the House of Lords to remove part 2, but we appreciate the important challenge the Government face. As the Chair of the Intelligence and Security Committee and colleagues on both sides of the House have put it, “How do we get the balance with our wish to make sure that our citizens are as safe as possible, bearing in mind the huge heroic work that our security services do, relying on intelligence from other countries?” The Opposition accept the control principle and always have done, and we will debate that after the votes at 8 pm. Nobody who has spoken today in favour of our amendments has tried to caricature the people against them as not being concerned about civil liberties and human rights. To be fair, those against our amendments have not tried to caricature our position as being against, or not understanding the importance of, national security.

The hon. Member for Cambridge (Dr Huppert), who represented the Liberal Democrats in Committee, made a speech today, and I think he indicated that he will be supporting our amendments at 8 pm. I pray in aid the fact that it is not just Opposition Members wishing to press these amendments, as I will shortly. The Joint Committee on Human Rights, in its most recent report last week, confirmed that it was unhappy with the shredding of the Lords amendments in Committee. The special advocates also agree with our amendments, as does the House of Lords. The independent reviewer of terrorism legislation and the former Director of Public Prosecutions also believe that our amendments strike the right balance between national security and ensuring that individuals are able to hold the Executive to account.

During the debate, my view—the Opposition’s view—has been characterised as considering PII perfect and a utopian panacea for some of the challenges we face, but I have not said that. I deliberately took some time to pray in aid the Supreme Court decision in al-Rawi, when the court said, to paraphrase, that it would like the additional tool of CMPs and suggested that it would like Parliament to give it that ability. That is what I am seeking to do.

I say to the Minister without Portfolio that the danger lies is some of the comments made by others, who gave the impression that CMPs are often preferable to PIIs and that rather than being the exception—a point made by a number of colleagues on the Government Benches—they would become the default position. That is where he must be careful. A number of Members on both sides of the House have said that PII is rubbish, that it is not the answer and that CMPs are far preferable, and they have asked why a judge would not opt for a CMP. We are simply seeking to put in the Bill the amendments passed by huge majorities in the House of Lords on the recommendation of the JCHR to ensure that a judge understands that he must consider the other options before he decides to go for a CMP.

I know that the Minister without Portfolio did not mean it when he said that every time he makes a concession, ingenious lawyers move fresh amendments; our fresh amendment would have become stale by now, as it is four months old. I would like to press to a vote amendment 26, which is a paving amendment for amendment 31 to make CMPs a last resort, and amendment 30, which is the gateway for the Wiley balancing test for maximum judicial discretion.

Question put, That the amendment be made.

The House proceeded to a Division.

Cabinet Office

Lord Clarke of Nottingham Excerpts

Tuesday 8th January 2013 Ministerial Corrections

[Official Report, 18 December 2012, Vol. 555, c. 726-7.]

[Mr Clarke]

… Sir Daniel Bethlehem, a former legal adviser to the Foreign Office, told the Joint Committee on Human Rights that the flow of intelligence from the United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.

Letter of correction from Kenneth Clarke:

An error has been identified in the answer given to the right hon. Member for Welwyn Hatfield (Grant Shapps).

The correct answer should have been:

[Mr Clarke]

… Lord Butler of Brockwell, a member of the Intelligence and Security Committee, told the House of Lords that the flow of intelligence from the United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.

Justice and Security Bill [Lords]

Lord Clarke of Nottingham Excerpts

Tuesday 18th December 2012 Commons Chamber

[Minister without Portfolio (Mr Kenneth Clarke)]

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

Since we first consulted on the Bill and during its passage through the House of Lords, it has aroused quite a bit of passion and debate among those interested in the subject. The first aim of my speech will be to try to satisfy the House that most of the passion and debate turns on the very important detail of the way in which the Bill’s processes will work. No doubt, the detail will be considered at great length in Committee rather than today. I believe that I can demonstrate that there is no real division on principle between the Government and most of the people who have debated this matter. The Government are just as committed as any other Member of either House of Parliament to the principles of justice being done in civil cases, the rule of law and the accountability of our intelligence agencies both to the courts and to Parliament. I believe that accountability will be improved by the Bill.

Our intelligence services comprise brave men and women, and we all realise they do essential work in helping to protect us against the great threats to this country. We also insist that they should respect and follow our values when carrying out their work, and they are properly accountable to the law and Parliament. I think the best people in the intelligence agencies are anxious to be able to demonstrate that, to protect their reputation and taxpayers’ money for claims made against them.

[Sir Menzies Campbell (North East Fife) (LD)]

Before my right hon. and learned Friend embarks on a more detailed consideration, I wonder whether he understands that the amendments made in the House of Lords have been regarded by many people as being entirely favourable and reasonable. Will he confirm whether Her Majesty’s Government will accept those amendments and will remain open to any further amendments, particularly those with the purpose of extending the discretion of the courts?

[Mr Clarke]

I shall come on to the detail a little later in my speech and I want to start, if I may, by reiterating the case in principle. I will deal with the amendments later, and we will accept some of them, but express our doubts about others. We will come back with a detailed response in Committee. I think the people who moved those amendments were pushing at an open door in terms of judicial discretion, but they were desperately anxious to dot every i and cross every t. In some cases, we are going to have to consider whether they put the right dots on the right i’s and crossed the right t’s. I shall deal with that. I quite understand that the Joint Committee on Human Rights came forward with recommendations that commanded wide support in the House of Lords—and, no doubt, in this House, too—but Ministers need to address them properly. If we wish to come back to some of them, we will explain in detail the reasons why.

Let me get under way. It was about a year ago when the House—

[Dr Hywel Francis (Aberavon) (Lab)]

rose—

[Mr Clarke]

I will give way to the Chairman of the Joint Committee, but I will not start a rash of giving way at this early stage of my speech.

[Dr Francis]

Do I detect from the warm way in which the Minister responded and referred to the report of the Joint Committee on Human Rights that he will be minded to accept many of its recommendations?

[Mr Clarke]

Minded to? Certainly—we will accept some of them. I speak warmly of the Joint Committee because I do not believe it was pursuing objectives that differed from mine or those of my colleagues. I think it will probably fall to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) to explain in Committee why we are not wholly convinced that every one of the amendments is quite right, or even that some of them would have the effect that the Joint Committee proposed. I will not, however, get into that level of detail so early in a Second Reading speech, if I may be allowed not to do so.

We discussed the Green Paper about a year ago, and I recall that it was a comparatively non-controversial occasion. Such was the general satisfaction and understanding on all sides that I left the Chamber wondering whether I needed to have bothered to make an oral statement. Quite a lot has happened since then, but I trust it has not shifted the opinion of the Members who joined in the debate at that time, particularly that of the shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan). I still strongly agree with what he said, which I shall quote:

“We need, as a matter of urgency, to bolster the safeguards and scrutiny mechanisms concerning issues of security and intelligence.”—[Official Report, 19 October 2011; Vol. 533, c. 901.]

I am glad to see the right hon. Gentleman nodding his head in response to his own quotation. I was glad to read in a recent interview in The Guardian that he still believes that, as he said:

“In two and a half years’ time, it could be me in that seat making that tough decision. So it is very important for ministers to have the opportunity to protect sources, to protect delicate operations and all the rest of it. They shouldn’t be jeopardised by a civil action.”

I will not comment on the right hon. Gentleman’s political optimism and ambition to occupy any seat at all, but he is certainly right, in my opinion, to identify a serious problem with the current arrangements. At the moment, total secrecy is all that happens to the sensitive intelligence information in far too many cases and no judicial judgment is pronounced on the merits of plaintiff versus defendant. I believe that the present system needs to be reformed urgently. That is why the principle of the Bill is certainly necessary.

In support of the need for change, let me remind the House of a letter written to The Times newspaper last month by a number of individuals for whom I personally have the greatest respect. The signatories included the former Lord Chief Justice, the noble and learned Lord Woolf; the former Home Secretary, Lord Reid; and my right hon. Friend Lord Mackay of Clashfern, a former Lord Chancellor. I am sure we all agree that all those people are totally committed to the rule of law and the principles of justice. In their letter they explained:

“In national security matters our legal system relies upon a procedure known as public interest immunity…Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.”

This procedure, they say, is

“resulting in a damaging gap in the rule of law.”

They are right to say that.

In my opinion, it has become well nigh impossible for British judges to untangle, and adjudicate on, claims and counter-claims of alleged British involvement in the mistreatment of detainees. If we, as citizens, want to know whether the Security Service could challenge and rebut what is claimed against it, no judge can give us guidance as things stand. Some of the allegations of British involvement in the mistreatment of detainees are really serious, and I do not think that the system should continue to prevent judges from scrutinising the secret actions of the state in such cases.

[Hazel Blears (Salford and Eccles) (Lab)]

Not only will judges not have the full information, but when cases are settled, adverse inferences will inevitably be drawn about behaviour that may or may not have taken place, and that affects the reputation of our agencies. Is it not therefore essential that we can get to the heart of the matter, so that the agencies can at least put their case?

[Mr Clarke]

I entirely agree. We keep being reminded of that. The fact is that the reputational damage is probably more significant than the millions of pounds that have been involved in some of these cases, and we need to ensure that some way can be found of trying them.

[Mr David Davis (Haltemprice and Howden) (Con)]

Will my right hon. and learned Friend give way—on that point?

[Mr Clarke]

Let me just explain. All of this is relevant.

Some of our critics appear to be arguing decisively that the status quo is somehow defensible and should continue, but I believe that that position is untenable now. It is simply not possible for a judge to hear these matters, and, as was pointed out by the right hon. Member for Salford and Eccles (Hazel Blears), all kinds of insinuations are made about cases in which it ought to be obvious to everyone that the intelligence agencies were in no position to call any evidence that would seriously address the issues.

The serious evidence that might be called and might be relevant—I am not commenting on the merits of any individual cases—might relate to the precise nature of the British intelligence agencies’ involvement in the issues concerned. What did our agents know about either an individual or an organisation at the time when the events being described were taking place? What collaboration was taking place between the British Government and partners in overseas agencies, and what information was being shared? Those are all very sensible questions, given the nature of some of the claims that have been made about the behaviour of British agents.

As I have told the House before, I do not think that any country in the world would tolerate a legal system in which our spies and our agents and their collaborators cheerily appeared in open court, in front of the parties, their lawyers and the press, and gave evidence on these matters. It would be exceedingly damaging. Public interest immunity, on which people now rely, has one obvious defect. If a Minister obtains it, that means that the material is entirely excluded from the court, and neither party can rely on it.

What continually happens, certainly in relation to defence evidence, is that—although there has been no proper hearing of all the evidence—the parties settle, the taxpayer pays up, claims are made which are damaging to the reputation of the service and no one knows whether or not they are justified, and we have to move on from there. I want us to reach a point at which cases are not being settled simply because our court procedures are not capable of allowing sensitive national security material to be heard in the few cases in which it is plainly relevant. It has always been obvious to me that what is needed in civil actions of this kind is the very limited use, in exceptional cases, of the closed procedures that were created by the last Government, which would enable a High Court judge to consider all the evidence from both sides, but to do so in necessarily closed conditions if national security was at risk.

[Mr Andrew Tyrie (Chichester) (Con)]

What inference does my right hon. and learned Friend think the public will draw if the Government win a case involving the closed material procedure in which the other party has had no chance to see or challenge the evidence—secret evidence—that the Government have introduced in support of that case?

[Mr Clarke]

The inference I would draw is that at least a judge, doing the best that he or she can, has had a chance to consider the evidence, and has delivered a judgment. If the judge is not allowed to consider the evidence, obviously no useful judgment can be pronounced at the end of the case. Of course it would be very much better if the evidence were given in an open procedure—in normal cases, the openness of justice is one of the proudest boasts of our system—but in cases in which national security will be jeopardised if evidence is given openly, it must be ensured that the evidence can be given in the best possible circumstances in the light of the obvious limitations of the case.

British judges are quite capable of deciding whether or not national security is involved. British judges do not need us to lecture them on the rule of law and the duty to be impartial between the parties. British judges will want to hear evidence openly if they think that that can possibly be practicable. British judges will be able to judge—they do it all the time—the weight to be given to evidence. Once the judges discover who was the source of the information, people can be challenged about the reliability of that source. Of course the system is not ideal—if we could only persuade all the country’s enemies to close their ears, there could be a perfectly ordinary single-action trial and we could hear everything—but I believe that the Bill will move us from what is currently a hopeless position to a better position that will allow us to hear the judgment of a judge in appropriate cases.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

Is the right hon. and learned Gentleman aware of a criminal trial that took place some years ago in Caernarfon Crown court in north Wales, involving the damage to second homes, in which MI5 officers gave evidence behind a screen? Their anonymity was not compromised, and nor were the interests of the state.

[Mr Clarke]

Nothing in the Bill will affect the criminal law. No one will be prosecuted on the basis of secret evidence. However, there are plenty of cases—for instance, those involving MI5 or involving victims of certain types, such as vulnerable victims—in which it is proper to screen witnesses from public view, or otherwise protect them. The Bill, however, has nothing whatever to do with criminal cases.

The purpose of closed procedures is not just to ensure that no one can see what the agent looks like; there are some cases in which we cannot let people know what the agent was doing. The plaintiff may have been compromised as a result of terrorist or other activity, and he and his friends may be dying to know how they were caught. What were the British agents doing that put them on to it? They want to know who shopped them, and that will make things very difficult for a person who they come to suspect is the source of the material that is emerging. As I think everyone knows perfectly well, it is not possible to share that information with the parties in each and every case of this kind. However, while some people might consider it satisfactory to say “Well, in those cases the Government never defend themselves and we just pay millions of pounds”, I really do not think that we need tolerate that situation any longer.

[Dr Francis]

Given what he said earlier about closed material procedures, how would the right hon. and learned Gentleman respond to what Lord Kerr said recently in the Supreme Court? He said:

“The central fallacy of the argument”—

the Government’s argument, that is—

“lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge.”

[Mr Clarke]

I was intending to return to the details of closed material procedures later. We could easily trade quotations, because various judges and legal authorities have expressed different views.





Closed material procedures sometimes achieve success. We have them now—the previous Government introduced them—and as I shall say later, as I should save it until I get to the relevant part of my speech, there are cases in which the special advocates have overturned the Government’s case. The most well known case is that of Abu Qatada, who won in a closed material procedure before a British judge only about a month ago—

[Sadiq Khan (Tooting) (Lab)]

It is being appealed.

--- Later in debate ---

[Mr Clarke]

Of course it is being appealed, but that does not alter my point. Depending on which side one is on, it is no good saying that we cannot have closed material procedures if the wrong side is going to win. In that case, the Government lost and Abu Qatada won using a special advocate and a closed material procedure.

[Mr David Davis]

On exactly that point, my right hon. and learned Friend—and he is my friend—said that these proceedings were created under the Labour Government. They were, and there are now 69 special advocates, 32 of whom are experienced in closed material procedures. The vast majority of them—nearly all of them—oppose the Bill as they think PII works better than the procedure they have been operating for the past few years. Why does he think that is?

[Mr Clarke]

The special advocates surprised me with the ferocity of the evidence they provided. They start from the side of the argument that challenges the security services and is suspicious of what goes on, and judges have told me—some have said this publicly—that they underrate their effectiveness in such actions. They are used to practising the present law and I assume that their position is that the present law is perfectly all right and that they wish to continue with it. I am surprised by the adherence to PII, which has not hitherto been evident.

Let me give the example of another case to show that special advocates can successfully challenge the evidence put forward in closed proceedings by claimants. Ekaterina Zatuliveter, the Russian girlfriend of a Liberal Democrat Member of Parliament, won her deportation case after a closed hearing in which a special advocate challenged the argument that she was a threat to national security and should be deported. It is simply not the case that in closed procedures it is impossible to challenge these points. Such cases are comparatively new, as no one dreamed we would have such litigation until 10 or 15 years ago.

The claims are getting steadily more numerous as we have an attractive jurisdiction in which the person against whom one makes allegations will probably not be able to call any evidence and one will be paid millions of pounds. The best way forward is the one that has been successfully used in the two cases I have already cited, which is, despite our very limited experience, having closed proceedings and special advocates. It is less than ideal, but it is justice, not secrecy. Secrecy is what we have at the moment, with an uncertain and debatable outcome in all these cases.

[Mr Jack Straw (Blackburn) (Lab)]

The right hon. and learned Gentleman is correct to say, of course, that the previous Labour Administration introduced closed material proceedings in 1997, with support from all parties, as I recall. They have worked. Will he confirm that in at least seven of more than 30 Special Immigration Appeals Commission cases since the beginning of 2007, including the two he mentioned, the court has found against the Government and in favour of the potential deportee?

[Mr Clarke]

I accept the right hon. Gentleman’s statistics. I cannot confirm them, as I do not have them myself, but they sound wholly credible. As he said, a Labour Government introduced these procedures—it might have been him—

[Mr Straw]

It was me.

[Mr Clarke]

It was he, as Home Secretary, who introduced them. They arose partly at the behest of human rights lobbyists who are now vehemently opposing the Bill. It was the intervention of human rights activists in the case of Chahal in the late 1990s that saw the system of closed hearings develop, but some of the same people are now arguing that closed material proceedings put the Government above the rule of law.

As I have already said and as the right hon. Gentleman has with authority confirmed, people have been successful in fighting the Government in these civil actions under the closed material proceedings, as the number of claims goes—

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

rose—

[Mr Edward Leigh (Gainsborough) (Con)]

rose—

[Mr Clarke]

Let me move on, because I am probably moving on to the point of concern—

[Sir Alan Beith]

On this point.

[Mr Clarke]

All right.

[Sir Alan Beith]

My right hon. and learned Friend referred to the ability of the special advocate to challenge the evidence. Lord Kerr, in the remarks quoted earlier, talked about gisting and whether it was possible for the special advocate to confirm or correct with the other party whether he was in a particular place at a particular time, because that had come up in the evidence. We need to consider a little more carefully that ability to check back with the person who would normally be instructing the advocate but cannot because he is a special advocate.

[Mr Clarke]

I shall turn to some of this detail, but gisting is allowed under the Bill. The judge will have all the powers he requires to recommend gisting once he has heard the secret evidence.

[Mr Leigh]

My right hon. Friend is very generous in giving way and I understand the dilemma he faces, but is it not a fundamental principle of British jurisprudence, defended by this House for 500 years, that a defendant should have sight of the evidence used against him that might affect his liberty?

[Mr Clarke]

In a criminal case, that is so. That is why we cannot prosecute some people we really should, because there is no way to reveal the evidence against them—if it cannot be revealed to a judge and a jury, he is untouchable under the criminal law. We are talking about civil actions, sometimes involving people with tenuous connections with this country who have come to this country and sought damages from a British court for what they say is the misbehaviour of the intelligence agencies of the Government. I have tried to explain why it is impossible to follow the normal and desirable rules of civil justice and hear it all in the open. We must find some way in which these cases can be resolved by a judge in a way that is consistent with our principles of justice without at the same time jeopardising national security. That is the straightforward dilemma.

[Robert Neill (Bromley and Chislehurst) (Con)]

rose—

[Mr Clarke]

I shall give way one last time, and then I must press on to the JCHR’s amendments.

[Robert Neill]

Does my right hon. and learned Friend agree that although the proposed system is not perfect and never can be in litigation, it is surely preferable to have that than a system where an ex parte application for PII can be made without the defendant having any notice of any kind and without anybody, not even a special advocate, being able to test the material?

[Mr Clarke]

The time has come for reform. The present system is not defensible, in my opinion, and my hon. Friend confirms that all kinds of features of PII are hopelessly unsatisfactory. We have to deal with them.

Let me move on—

[Mr Tyrie]

Will my right hon. and learned Friend give way one last time?

[Mr Clarke]

I keep giving way one last time, so, with apologies to my hon. Friend, let me turn to what I think is the subject matter of the serious debate that has been taking place since we consulted on the Green Paper.

It was our intention from the start to consult on the Green Paper. As what we are doing goes to the fundamentals of our legal system and our rule of law, we actively sought the widest possible support for what we are doing. Even before the Bill was introduced and before it went through the Lords, we narrowed its scope to make quite sure that CMPs could be made available only when disclosure of the material would be damaging to the interests of national security. Green Paper language that slightly implied that the police, Customs and Excise and all sorts of other people might start invoking them has gone completely away. We removed the Secretary of State’s power to extend the scope of the Bill by order, and excluded inquests after a campaign led by the Daily Mail got widespread support in this House. As I have already said, we never even contemplated that our proposals should cover criminal cases.

We also conceded—this is the key point, which I think we are still debating with most of the critics—very early on, after publishing the Green Paper, that the decision whether to allow a closed material procedure or not should be a matter for the judge and never for the Minister. That is an important principle and it is what most of the arguments, even about the JCHR’s amendments, are all about. We have all, I hope, now agreed that it is a judge’s decision whether or not to hold closed procedures. The question is how far we need to keep amending the Bill to clarify this and how we avoid unnecessary consequences if we overdo it. I shall return to that.

That is what most of the debate was about in the House of Lords and it is the point of the JCHR’s report. When it came to a Division in the House of Lords on the principle of closed material procedures, the Government had an enormous majority. The Labour party did not oppose the principles of CMP, even though it was a Back-Bench Labour amendment which the other place voted down. I trust that the Front-Bench Labour team and the right hon. Member for Tooting continue to be of that opinion. Unless his undoubted radical left-wing instincts have got the better of him, I do not think that is the position of any party in this House.

The concern of the House of Lords and of the JCHR was that the judge should have a real and substantive discretion about whether a CMP is necessary in any case. Many Members of the upper House made their support for CMPs contingent on changes being made to increase judicial discretion and ensure that it was clear on the face of the Bill that CMPs would be used only for a very small category of exceptional cases.

I begin by making it clear on behalf of the Government that I agree that the judge should have discretion. I agree that we should be talking about a small number of cases where any other process is impossible and it is necessary for it to be handled in this way. A strong and compelling case was made by those who argued that we ought to trust our judges to decide the right way to try the issues in any particular case. I agree. The debate—I suspect it will be the same debate today as it was in the House of Lords—starts from the fact that the Government’s case is that the Bill as it stood already accepted that principle. As we were defeated, we will consider what more we can do by way of reassurance. People are deeply suspicious of anything in this area and they are convinced that, despite what we put in the Bill, the judge will somehow be inhibited by what the Government propose to do.

Our judges are among the finest in the world. They are staunch defenders of the rule of law, and they have shown time and again that they can be trusted not to endanger the national security of this country. I know that they can be—

[Mr William Cash (Stone) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

If it is on a British process, not a Strasbourg one.

[Mr Cash]

It is on the Law Lords themselves in the past and now the Supreme Court. Does my right hon. and learned Friend accept that there are divisions of opinion even at the highest level about the extent to which such decisions should ultimately be made by the most senior judges or Parliament, and that there are very senior judges who take the view that Parliament, not the judges, should decide these questions?

[Mr Clarke]

There are other occasions on which we shall no doubt debate parliamentary override of the courts of law. I realise that that is a matter dear to my hon. Friend’s heart. In the Duma it would be carried nem. con. The Russian Government would be utterly delighted to hear the principle of parliamentary override brought into our legal system in this country. I think the House of Commons should be hesitant. There may be senior judges who think that that should apply. The process that we are applying is different. The Government’s case is based on trusting the judges to use the discretion sensibly. That is what I think we should do, but of course I address seriously the views that were put forward.

I want to make it clear, to go back to what the right hon. and learned Member for North East Fife (Sir Menzies Campbell) asked me earlier, that the Government will not seek to overturn the most important amendment—the most important, in my opinion—made by the House of Lords that the court “may” rather than “must” order a closed material procedure upon an application. I do not see how we could give a wider discretion than that.

We will also accept that any party, not just the Government, should be able to ask for a closed material procedure. I think it highly unlikely that any plaintiff will be in any situation to start arguing that he wants to protect national security, but if people want that, they can have it. More importantly, the court of its own volition should be able to order a closed material procedure.

A further series of amendments were made which we still need to look at more closely. We have time to look at them closely and the others will be addressed by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Old Bexley and Sidcup in Committee. We are not against the principle, but we are not sure that the amendments add anything. I shall give the reasons in a moment.

[Joan Walley (Stoke-on-Trent North) (Lab)]

I am grateful for the opportunity to question the Minister. My main concern is where the discretion is being applied. Can the right hon. and learned Gentleman clarify for me the position of families of armed forces personnel who have been illegally killed, or people who have been injured and wish to take out court cases? How will the new arrangements apply to them, and how will it be possible to ensure transparency in the courts?

[Mr Clarke]

I answered that in the written question that the hon. Lady put to me. She is welcome to put an oral question to me at Cabinet Office questions, now that she has discovered who is handling the Bill. Most such Ministry of Defence cases do not give rise to national security considerations, and the Ministry of Defence does not expect to start invoking closed material proceedings. One cannot anticipate it, but it is possible that the circumstances of the tragic death of a soldier might involve some highly secret operation, and then the situation might arise. We have not had problems on this front so far and the expectation is that it need not arise. If it were to arise, there would still be the judgment of the judge and a decision in the case.

I am trying to think of examples that could conceivably arise. If a soldier was killed and it was alleged that that was the result of some actionable negligence, which apparently we are now going to allow people to argue in our courts, and that took place in some highly secret operation in some unlikely part of the world, I cannot rule out a CMP application being made. The Ministry of Defence is more robust than I am. I am told that it does not think that most of these cases involve national security at all.

[Jeremy Corbyn (Islington North) (Lab)]

In reply to my hon. Friend the Member for Stoke-on-Trent North (Joan Walley), the Minister outlined extreme circumstances of an injury to a British soldier. Would the same process apply if there was embarrassment over arms sales to a particular country, where those sold arms had been used to deny the human rights of many others, against the policies and wishes of this country, and there was a desire not to make that too public?

--- Later in debate ---

[Mr Clarke]

It sounds as though it could be criminal action in that case, which the provision would not apply to. It would be for the judge to decide whether what is being protected is embarrassment for the Government or national security and the interests of the nation. We can all start dreaming up—I did it myself a moment ago—fanciful cases where such a situation might arise. The judge would have to decide whether national security was at risk. It is a two-stage process, which I will not argue at length today, but what happens is that the judge can allow the closed material proceeding. At the end of the closed material proceeding he can revoke it, he can say that the proceedings should be gisted, he can say that the documents should all go in, but perhaps redacted in key places. There is wide discretion before he goes back to the open session. If a Government at some time want a closed hearing, they will get it only if they can satisfy the judge that national security is at risk.

[Pete Wishart (Perth and North Perthshire) (SNP)]

The right hon. and learned Gentleman will have seen the strongly worded letter from the Cabinet Secretary for Justice in the Scottish Government outlining his serious concerns about the Bill. The Scottish Government have made it clear that they want nothing to do with it as it applies to their jurisdiction. Will the Minister ensure that he respects their position?

[Mr Clarke]

Constitutionally, I will respect the Scottish Government’s position. If they think that Scots are not ready for decisions in these cases and wish everything to remain shrouded in secrecy and mystery, so be it. That is a matter for the Scottish Government. It seems to me that would be the result if they will not move with what I think is the obvious response to the needs of recent cases.

To return to the detailed amendments, let me explain where my reservations come from. The House of Lords decided to get carried away with the discretion. I have already accepted the widest discretion, but they then wanted to start setting out in the legislation factors that the judge ought to take into account. We are considering that, and I can assure Members that there will be a response in Committee. The Lords obviously do not trust judges as much as I do, because they wish to start setting out factors. However, if we set out factors in the legislation, they must be the right ones. If they are not, they can give rise to other problems.

For example, some of the amendments made in the House of Lords—I am leaving aside whether some of them are necessary—would require the judge to consider and exhaust alternatives to closed material proceedings in every case in order to prove that the case could not be tried in any other way. It sounds attractive, but in some cases it would be obvious to the judge from the start that a closed material procedure was necessary. As the independent reviewer of terrorism litigation, David Anderson, explained to the Joint Committee on Human Rights,

“there is no point in banging your head against a brick wall… if the exercise is plainly going to be futile.”

In the Guantanamo Bay cases, which provoked the need to address the law and bring forward this reform, the court would have had to consider about a quarter of a million documents before determining the PII application and moving to a CMP. It would have had to consider a quarter of a million documents before moving beyond a preliminary issue. When I was Home Secretary I certainly issued PII certificates for intelligence material. In the arms to Iraq inquiry, I am glad to say that the judge confirmed that I had done what I was supposed to do: I had read every document—they were brought to me in boxes and put on the floor and required a whole day to consider. The Guantanamo cases would have required a full-time Minister to do nothing but wade through the PII certificates for months and months before the application could be made and further progress could take place. In some cases, the delay of going through that process could have detrimental impacts on other people affected by the issues in the case awaiting judgment.

Equally, all parties might consent to a closed material procedure. If they consent, should the judge still be required to go through the time-consuming PII process? In the Maya Evans case, all parties consented to a closed material procedure as the only way to try the issues. The ruling in that judicial review case, which was with special advocates, changed Government policy on detentions in Afghanistan, directly affecting ongoing Government actions. Delays in that case to consider alternatives to closed material procedures could have meant that more individuals were exposed abroad to a policy that the court ultimately concluded was unlawful.

I will give an indication of why I will not give a blanket assurance that we will accept all the House of Lords amendments. I do not think that the problems were properly considered, and we will bring forward the products of our thinking in Committee. As I have said, we continue to debate the powers the judge should have once a closed material procedure has been granted. Under the Bill, the court will have strong powers to require gisting, redaction and summaries. In particular, the Bill sets out—it is probably unnecessary—that to ensure a fair trial under article 6 of the European convention on human rights, the court can order disclosure of material notwithstanding the damage that would be caused to national security. In that situation, in order to disclose, the Government would have the opportunity, as they currently do under PII, to seek to bring an end to proceedings, or an aspect of proceedings, in order to avoid damage to national security. If the Government do not disclose material or elect not to provide a summary of material, the court can order the Government not to rely on it or to make concession or such other steps as the court might require.

In brief, the Bill leaves it to the judge to decide what is necessary in any particular case, rather than seeking to impose disclosure requirements or to fetter the judge’s discretion in deciding whether to have a closed material procedure. I think that we should reflect on that in Committee. Let us not go into Committee with everyone saying, “What the Joint Committee on Human Rights has said is necessarily right and we will support the Bill so long as we sign up to that.” I think that some of the JCHR amendments raise serious issues that should be debated properly in this House and which the Government must be allowed to exercise their judgment on before reaching a final decision.

[Guy Opperman (Hexham) (Con)]

I conducted in excess of a dozen PII trials as a criminal barrister. Does the Minister accept that there is a fundamental difference between what he is proposing and the procedures under PII?

--- Later in debate ---

[Mr Clarke]

Yes, because we want a process whereby the judge can hear the evidence of the intelligence agencies in a closed—secret, if one likes—process, and that is not the purpose of PII. PII is a very old process that has developed over the years from simple beginnings, and I imagine that in the early cases—before my time—it was probably rather straightforward: if a Minister said he wanted public interest immunity, it was granted. The findings of Lord Justice Scott in the arms to Iraq inquiry —not at my expense, I am glad to say—rather upset that approach. PII is of course used flexibly in proper cases because judges and lawyers all want to hear evidence in open court whenever possible, but I think that we need to update all this. We are not abolishing public interest immunity, but I think that in many cases extending closed material procedures, which is what we are proposing, would be an altogether more sensible way of getting a proper judgment in the case.

Let me turn to the provisions of the Norwich Pharmacal jurisdiction.

[Hazel Blears]

I want to tease out the right hon. and learned Gentleman’s view on the balancing test, which is part of the House of Lords amendments. At the moment there is a test stating that the judge, when deciding whether closed material procedures can be applied for, has to balance the degree of harm to the interests of national security with the public interest in the fair and open administration of justice. Balancing tests are notoriously difficult. One of the main problems with the Chahal case, which led to significant issues for this country’s national security, was whether the balancing test was in the right place, and most of us felt that it was not. If we are to have a balancing test in the legislation, it is in the part about whether proceedings are suitable; it is not in the part about when an application can be made. We need some clarity on the Government’s position with regard to the balancing test, because clearly the interests of national security are not always equivalent to the interests of an open proceeding, and that is a difficult balance to strike.

[Mr Clarke]

The balance is indeed difficult to draw. We have debated the balancing test on various occasions and in the past I have rather resisted it because it gives rise to the possibility of the judge saying, “Oh yes, there is a risk to national security. What a pity, never mind. I wish open justice to be done, so let’s take a chance with national security.” That is probably a somewhat broad-brush piece of opposition, and we are reflecting on the issue. The proper response to the right hon. Lady’s entirely sensible and pertinent question is probably best given in Committee, when we will have had more time to decide the position.

[The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire)]

indicated assent.

[Mr Clarke]

My hon. Friend is nodding; he will be presenting our reactions.

“Norwich Pharmacal” is the phrase used by lawyers to describe a process that grew up in the sphere of intellectual property law, in which someone is enabled to apply for the disclosure of evidence—documents, usually—relevant to a claim that they are making. It is used to force a third party who is mixed up, however innocently, in suspected wrongdoing, to disclose information that a claimant feels may be relevant to a case that they are bringing in some other jurisdiction, usually abroad.

In 2008, as a result of ingenious arguments, the Norwich Pharmacal principle was extended to national security law. The purpose of proceedings under the principle now is for people involved in a legal process of some kind, usually overseas, seeking to obtain disclosure of intelligence material in the hands of the British Government.

As the purpose of the proceedings is only disclosure—no other judgment is being sought—the Government do not have the option to withdraw from or settle proceedings; if the judge orders disclosure, there is no option but for the Government to release the secret intelligence. That has given rise to understandable fears that if a person shares information with the British Government’s agencies, British judges have the power to order the release of some of it and that person cannot be certain of being able to resist that.

There is no point in my setting out obvious platitudes about the nature of intelligence work. If intelligence agencies are not able to guarantee to their sources, be they friendly overseas Governments or agents, that they can keep secrets, people will not share so much information with them. Lives will literally be at risk in some cases as will international co-operation on such vital issues as torture prevention and human rights.

[Mark Field (Cities of London and Westminster) (Con)]

rose—

[Mr Clarke]

I will give way and then seek to persuade the House that those fears are not fanciful or false; the problem is happening now.

[Mark Field]

I thank my right hon. and learned Friend for giving way. I entirely agree; he has admirably put forward the concerns about Norwich Pharmacal and the historical accident that has arisen as far as national security cases are concerned. Was he not tempted, therefore, simply to exclude Norwich Pharmacal matters from national security—in other words, make it absolutely clear through Parliament that the Norwich Pharmacal arrangements should be regarded narrowly as being available only in intellectual property cases and should not apply to national security matters? Is he not taking us down a rather more convoluted route in the Bill?

[Mr Clarke]

The practical effect of the Bill is exactly as my hon. Friend recommends, although it may have been drafted with a few too many provisos and provisions because of the deep suspicion with which these things are regarded. Essentially, however, we do not think that Norwich Pharmacal should apply to intelligence material provided in confidence to the British security services.

I will not take too long on this because the argument is perfectly straightforward, but I want to tell the House that these are not false fears. Over the past year, we have picked up concerns from human agents. They have always been concerned about the degree to which their relationships can be protected, of course, but they are now becoming really concerned about disclosure to the British courts. Sir Daniel Bethlehem, a former legal adviser to the Foreign Office, told the Joint Committee on Human Rights that the flow of intelligence from the United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.[Official Report, 8 January 2013, Vol. 556, c. 3MC.]

Arguments tend to break out as to whether agents have any reason to be fearful, but that is not totally the point. As long as, as a result of hearing about the extraordinary process called Norwich Pharmacal, other intelligence agencies and our agents think that there is always a risk of disclosure by the British courts, the damage is done. To follow the point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), what on earth are we running that risk for?

[Sir Malcolm Rifkind (Kensington) (Con)]

In support of what my right hon. and learned Friend has just said, I should say that the Intelligence and Security Committee has taken extensive evidence on the matter in both the United Kingdom and Washington in respect of the likelihood or actuality of damage to very important information that prevents or might prevent terrorist incidents in the United Kingdom. We are satisfied that my right hon. and learned Friend’s point is entirely valid and that the House should take it into account.

[Mr Clarke]

I close my case, as they say; there is no need for me to carry on addressing the House about Norwich Pharmacal. We wait to hear what points might be raised about it.

I move on to part 1 of the Bill, to which I think the House should have much more regard. It deals with the important issue of parliamentary oversight of our security and intelligence agencies. I suggest to both sides of the House that if we wish to be reassured about the accountability of our security services and really try to guarantee to ourselves that they are not misbehaving, we should look to stronger parliamentary oversight as well as to more accountability to the courts.

It is time to put the Intelligence and Security Committee, chaired by my right hon. and learned Friend, on a much stronger footing and to enhance its independence to strengthen the valuable work it has done so far. We have to give Parliament more effective oversight of the intelligence and security agencies.

The ISC operates within arrangements established by Parliament in 1994, but the nature of the Committee’s work has changed dramatically. In the past 18 years, particularly since 9/11, the public profile, budgets and operational demands on the agencies have all significantly increased, but there has been no change in the statutory arrangements for oversight. In the past, the ISC has overseen operational matters but has done so relatively infrequently and generally at the direct invitation of the Prime Minister. The ISC has no statutory powers to oversee such matters. Its statutory remit is also limited to oversight of the security and intelligence agencies, although it has long heard evidence from the wider intelligence community.

At the moment, the Prime Minister receives its report and appoints its members. Currently, the heads of the security and intelligence agencies are permitted, in certain circumstances, to withhold information from it. We can certainly improve on that. We need to give the ISC greater teeth to ensure that we can continue to have confidence in those who oversee the agencies on our behalf.

The Bill provides that the ISC will in future be able to oversee the agencies’ operations, within appropriate constraints. The Committee will also in future report to Parliament, as well as the Prime Minister. Its members will be appointed by Parliament, after nomination by the Prime Minister. The power to withhold information from the ISC will move from the agency heads to the Secretary of State responsible for that agency—a Minister accountable to the House. It will be a parliamentary Committee. We are greatly strengthening our powers to hold accountable those who do such vital work for our country.

[Mr Tyrie]

My right hon. and learned Friend said that the Intelligence and Security Committee will henceforth be accountable to Parliament. Will he be prepared to consider the proposals of the Wright Committee on parliamentary renewal—that the Chairman of the ISC should henceforth be elected by a secret ballot of the whole House, subject to a veto by the Prime Minister at the nomination stage? That was accepted unanimously by the Wright Committee and it has won widespread support. It would greatly enhance the credibility and sense of independence of the ISC Chairman.

[Mr Clarke]

I have the greatest respect for the Wright Committee and we will consider the matter further, although I am not instantly attracted by that proposal. We are moving to a situation in which the Chairman of the ISC will be elected by the Committee and the Committee itself will be elected by the whole House from a list approved first by the Prime Minister. On reflection, I think that the problem with a system whereby the House could elect whoever it liked, subject to a prime ministerial veto, is that it would be an Exocet that was hugely embarrassing to use. It is not impossible—I hope that it is not too fanciful—to envisage a case where the security services have satisfied the Prime Minister that there is some problem with a particular Member of this House of which the wider world is completely unaware. [Interruption.] That is not unknown; I am sure that it has happened in the experience of the right hon. Member for Blackburn (Mr Straw). The idea that the Prime Minister must suddenly issue a veto on the result of an election carried out in this House is probably a step too far, and I think that my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the ISC, agreed with me when we discussed this very matter not too long ago.

[Sir Malcolm Rifkind]

indicated assent.

[Mr Clarke]

My right hon. and learned Friend nods his head in approval.

The arrangements that we are proposing for a stronger Committee will in some cases be underpinned by a memorandum of understanding between the Government and the Committee. The MOU will set out the arrangements at a level of detail far beyond that which need be put in this Bill. We have reached the stage of discussing the terms of that MOU with the Committee. I have had some extremely constructive discussions with my right hon. and learned Friend and other members of the Committee about the Bill. We will bring forward other amendments if necessary to make clear the ISC’s increased connection to Parliament and provide it with some statutory immunities to assist in this work.

I apologise for the length of time that I have taken in introducing the Bill, but I have given way generously. It is the kind of Bill where there should not be serious argument about the principle, but the details are extremely important in a country which has high regard to the rule of law and does not to want to risk abuse of process in any proper case. That is why I commend its Second Reading to the House. To reject it and stay with the status quo would be to continue a quite intolerable situation that is not only unacceptable to the agencies, which cannot defend their reputations, but should be unacceptable to the taxpayer, who has to pay for some of these settlements, and to any citizen who wants a judge to have the chance to make a judgment on the issues.

In my opinion, for all the reasons I have given, the Bill strengthens the accountability of our intelligence agencies and GCHQ to the courts and to this House. It supports our belief in justice, the rule of law and the liberal, democratic principles that underpin this country. I trust that the House will therefore be content to give it a Second Reading.

--- Later in debate ---

[Sadiq Khan]

I will come to some of the huge improvements made in the other place.

The Government claim that they are unable to defend themselves in court because the nature of the evidence they would need to deploy is so bound up with sensitive intelligence as to make it impossible for it to be made public. As a result, they are having to settle cases and pay out-of-court compensation. By allowing CMPs in situations involving national security, the Government are seeking to avoid situations where cases are not seen through to their conclusion and avoid the premature payment of compensation.

Let us go right back to the very beginning of this legislative process. The original proposals that were published in the Green Paper involved huge issues. The Minister said at the time that after the consultation on the Green Paper, he expected a White Paper, followed by a Bill. We had serious problems with the Green Paper, but we were encouraged by the sensible pace at which he proposed to progress.

As I have said, the original Green Paper was roundly criticised by others for being too broadly drafted in its coverage of CMPs. After the consultation, the Government decided to jettison secret inquests, making a virtue, as has happened again today, of this concession. I pay tribute to the Royal British Legion and the non-governmental organisation, Inquest, for successfully fighting that barmy idea. Many suspect, however, that the inclusion of inquests in the first place was a wheeze—an idea that would be later binned and presented as a major concession. It is the oldest trick in the book.

The process then changed: there was no White Paper. Instead, we jumped straight from the Green Paper to a Bill, which, while including inquests, did not take on board the wide range of concerns that had been raised about the proposals. In many people’s eyes, the Bill’s process for deciding when there should be a CMP was worse than the process set out in the Green Paper. Even more power was concentrated in the hands of Ministers to decide what would stay secret, while judges had fewer powers to take a balanced view on whether it was in the national interest to keep something secret or whether it was in the public interest to disclose it.

It is on this point that the right hon. and learned Gentleman disagrees with many independent experts, including judges, about how the process will work. He insisted that the CMP process was a judge-led, balancing exercise and that it was not a Minister-led process. He repeated that several times, criticising those who dared to question his assertions, and he has done so again today. I and many others have picked him up on this, because the Bill as drafted was clear: it was not a judge-led process. In the old clause 6, there was no balancing exercise. It was a grab for power by Ministers. They would have decided what stayed secret and what did not. Judges were left with no option but to grant a CMP. The word used was “must”, not “may”. It was simply unacceptable. The power that that would have handed to the Executive to keep material secret was unacceptable and I am pleased that the right hon. and learned Gentleman has accepted the change made in the other place.

[Mr Kenneth Clarke]

Extraordinary assertions keep being made outside this House that the Bill allows Ministers to decide whether there should be closed material proceedings, but that is complete nonsense. The “must” to “may” amendment arises in circumstances where the judge who takes the decision decides that national security would be at issue. The original Bill said that once he finds that there is a risk to national security, he “must” have a closed material procedure. Such is the concern of all these critics that we have made it clear that we will accept a wider discretion, so even when the judge—not the Minister—is satisfied that national security is at risk, he “may” have a closed material procedure. I submit that people should think about the possibility that that leaves the judge with all the discretion in the world to think about all the other issues that might mean there is some compelling reason in a particular case not to allow a CMP, even when national security is threatened. I simply do not understand why the right hon. Gentleman—he is not the first; I am not singling him out—and others keep asserting that Ministers will decide on that when the Government gave up that position months ago.

[Sadiq Khan]

I know that the right hon. and learned Gentleman has not practised law for a while, but he is wrong. The old Bill clearly said that if a Minister decides that there is a threat to national security, the judge must order a CMP. The improvements made by the House of Lords changed that and I am glad that he has accepted them.

The right hon. and learned Gentleman has lashed out—he did it again today—at what he called the “reactionary” elements of the civil liberties community. He is sniggering, but he will recall that he was once a part of that community. Does he really believe that David Anderson QC, the Government’s independent reviewer of terrorism legislation, fits that description? I remind him of what Mr Anderson said about the Bill’s original proposal that Ministers would trigger a closed hearing:

“That proposal seems to me profoundly wrong in principle. The decision whether to order a CMP is properly for the court in the exercise of its case management functions.”

He also said that a CMP should be used only if

“the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”

It seems that it was not just me who got it wrong; according to the Minister without Portfolio, his own independent reviewer of terrorism legislation also got it wrong.

Advocates also appear to have got it wrong by not understanding the Bill as previously drafted. Many esteemed legal Members of the other place, such as Lord Pannick, Lord Macdonald and Lord Phillips, also got it wrong if the Minister without Portfolio is correct.

On 19 November, the day the other place considered the Bill on Report, an editorial in The Times—hardly a member of the “reactionary” civil liberties community—said:

“The Justice and Security Bill being considered in the House of Lords today cannot be allowed to stand in its current form”.

The Daily Mail, which is not historically known to be a “reactionary” element of the civil liberties community, either, has also consistently opposed the right hon. and learned Gentleman’s original proposals.

I accept that some have argued strenuously against the whole principle of CMPs in our civil courts. Others have focused their energies on ensuring that the Bill has proper checks and balances in place.

[Mr Kenneth Clarke]

rose—

[Sadiq Khan]

I will give way to the Minister without Portfolio. Clearly, one hour was not enough for him.

[Mr Clarke]

We are merely warming up. To refresh the right hon. Gentleman’s memory, I have a copy of the original Bill. I think he is talking about a debate that was last sensibly carried out when the Green Paper, in which we said that it would be for a Minister to decide on this matter, was considered. Clause 6(2) of the old Bill says:

“The court must, on an application under subsection (1), make such a declaration if the court considers that…(b) such a disclosure would be damaging to the interests of national security.”

We published the Bill on the basis that it was a judge’s decision. We are making the judge’s discretion wider. He does not have to have a CMP. Even if he is satisfied that national security is at risk, he “may” make a declaration, which is what has been proposed to us by the House of Lords.

[Sadiq Khan]

The right hon. and learned Gentleman can use the present or past tense, but the reality is that, previously, the judge would have had to order a CMP if the Minister said that there were national security issues. There was no balancing exercise. The changes made in the other place mean that the process is now judge-led and I am glad that the Minister without Portfolio welcomes them. I am glad that legal experts agree with me. We will have a chance to come back to the issue later.

The defeats inflicted on the Government in the other place were truly stunning—the Minister without Portfolio used the phrase, “Pushing at an open door”—with majorities of 100, 105 and 87. Those defeats mean that, as the Bill stands, there will be an equality of arms between the two parties in a civil action and a full judicial balancing of the competing public interest. Moreover, if CMPs are to be granted, it must be as a last resort—I know that the right hon. and learned Gentleman does not like that change made in the other place—and, importantly, there will now be judicial balancing within the CMP.

I have no doubt that there would have been more defeats had the Minister in the other place, Lord Wallace, not seen sense and conceded on other amendments. The scale of those Government defeats is testament to the enormous levels of unhappiness of distinguished legal experts and serious people with the Bill as originally published.

I pay tribute to the Joint Committee on Human Rights, particularly its Chair, my hon. Friend the Member for Aberavon (Dr Francis), for the work it has done. Its amendments—the Opposition supported the majority of them—were the basis of the victories in the House of Lords. We will seek to make other changes to the Bill in Committee, in order to ensure greater fairness. We will oppose any attempts to water down the improvements that have already been made.

I want to touch briefly on clauses 14 and 15, which address the so-called Norwich Pharmacal cases. They prevent the disclosure of “sensitive information” that the Secretary of State certifies it would be contrary to the interests of national security or international relations to disclose. In those cases, a party seeks an order for the disclosure of evidence in order to pursue or defend a case against a third party, possibly outside the jurisdiction, as in the cases that have attracted attention in which the defendant—that is, the Government—is to some degree mixed up in events, perhaps by quite innocently coming into possession of some information.

Disclosure via Norwich Pharmacal is, we are told, already seriously undermining confidence among our most important partners, including the United States of America. That is an important matter for our intelligence agencies, which I have already paid tribute to, because they probably work more closely with their colleagues in the USA than those in any other country. We understand the importance of the control principle.

Although there may be an issue that needs to be addressed and a case for regularising the situation created by the Norwich Pharmacal cases, we question whether the Government’s approach is too broad. We will test that in Committee. The independent reviewer of terrorism legislation, David Anderson QC, agrees with our position and has publicly accepted that there is

“a case for restricting the novel application of the Norwich Pharmacal jurisdiction to national security information.”

He concluded, however, that what is now clause 14 was too broad in its application.

We do not intend to oppose the Bill on Second Reading. However, I hope that I have made it clear that we wish not only to hold on to the improvements that were made to the Bill in the other place, but to use the Committee stage to seek further improvements. How we vote on Report and Third Reading will be determined by the Government’s actions in Committee between now and then.