Justice and Security Bill [HL]

Lord Tunnicliffe Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Pannick]

My Lords, the amendment would provide for judicial discretion in this context. We have had a full debate on whether or not there should be judicial discretion. I beg to move.

[Lord Tunnicliffe]

The amendment is supported by these Benches.

[Lord Wallace of Tankerness]

My Lords, I am not quite sure that I can say that we do not support the amendment and just leave it at that, as that would not be courteous to the House.

Very briefly, the Bill states that the judge must order a CMP if he considers that a party to the proceedings would be required to disclose material and that such a disclosure would be damaging to the interests of national security. The amendment would change the “must” to “may”, introducing greater judicial discretion. However, the Government do not consider that this is a necessary amendment given the narrow criteria that are set out for triggering a CMP and the other safeguards in the process.

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

It is also important to remember that the process does not end with the court’s declaration that a CMP may be used. It is, as has been described in our previous debates, a gateway. Stage 2, set out in Clause 7, is a process whereby the special advocate can then challenge individual documents as to whether they should go into open or closed proceedings, and this is done successfully.

In those circumstances, I encourage the noble Lord to withdraw his amendment, although I suspect that he is not going to do so.