Lord Tyrie
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Justice and Security Bill [Lords]
Lord Tyrie Excerpts(11 years, 11 months ago)
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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 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 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.
Hazel Blears
I think the Americans have a great deal of concern about many legal jurisdictions when it results in information subject to the control principle being disclosed in open court.
Mr Tyrie
Is the right hon. Lady aware that the American courts do not provide that absolute level of protection and that there is no reciprocation of the control principle in US courts, so it is perfectly possible, through the US court system, that information that we have handed to the Americans could, in principle, find its way into the public domain? That point has been made once or twice already. It is crucial that both countries have a sense of balance and put their courts back at the centre of making that judgment.
Hazel Blears
With respect to the hon. Gentleman, clearly the control principle relates to relationships between different intelligence services and liaison countries. Also, in America, they have the states secret privilege, under which they can say, “This matter is not justiciable at all, because it covers matters relating to national intelligence”, so in some respects it is a more draconian system than ours. We are seeking to find a balance, rather than having an Executive veto, and I think that that is the right way to go.
The second issue on my “for” list was about revealing capabilities, techniques and methods. As a member of the Intelligence and Security Committee, I am in a privileged position and have had an opportunity to look at the current cases lodged for damages in civil proceedings. I have looked at the grounds from the applicants and the defence grounds from the agencies, and it is startlingly clear that, were the defence to be pursued, it would reveal techniques, methods, capabilities and networks of agents, and that it would be impossible for the security agencies to pursue their defence in those contemporary cases. Some people think that these cases are historical and that once we have dealt with the ones from Guantanamo Bay, which we have, there will not be any more coming down the track, but that is not the case. Many have happened recently, and, as the Minister without Portfolio said, this jurisdiction is now becoming an attractive place to bring a claim, because the agencies are not in a position to defend themselves.
Thirdly and fundamentally, the system of closed procedures will allow all the evidence to be put before the judge. That is the foundation here. If we have public interest immunity, we exclude information from the judge, which is the opposite of what we are trying to achieve, and I do not believe that partial justice, in which information that could go to the heart of the proceedings is excluded, is proper justice.
The final point that I weighed in the balance was about safeguarding the reputation of our agencies. My right hon. Friend the Member for Wythenshawe and Sale East made the point very powerfully that these are people who, in some cases, put their lives on the line for our safety and that of those we represent, and when they have to settle cases, as they did last week in the claim by Mr al-Saadi, people will inevitably draw inferences. They will say, “There’s no smoke without fire. There must have been something in it, if the Government are prepared to pay £2 million”, and that puts the agencies in an invidious position. Men and women of integrity and honour who dedicate their lives to the protection of this country are smeared by the implication that they have been complicit in torture or mistreatment. It might have happened in some cases, but I would rather that all the information was before the judge, because at least then the services could get a proper decision, rather than have their integrity smeared, which I think is outrageous.
My final point is about taxpayers’ money. It is not our main issue, but many millions of pounds has been paid to people, some of whom might not have had legitimate claims had we been able to get them into court. If we are giving them millions of pounds, there is the prospect of some of it being used to fund further extremist or terrorist activity. That is totally unacceptable.
There are a number of outstanding questions, and I have no doubt that the Minister will explore them in fine detail in Committee. I look forward to the prospect of discussing them with him. I want to make a couple of final points now, however. The decisions to accept discretion and to move from “must” to “may” are welcome. If this is really to be a judge-led process, that is where we need to be. I also want to make a point to the right hon. Member for Haltemprice and Howden, who is no longer in his place. He talked about the court being able to look at each piece of information; that is exactly what the court will be able to do. The judge will be able to look at each piece of evidence and ask whether it goes to the heart of the issue and whether it should be kept secret or disclosed. If there were a redacted paragraph that had no national security implications, for example, the judge would be able to determine that it could be disclosed. PII would be available, and the matter would not even be before the court, so the right hon. Gentleman’s point really did not support his argument. On the PII issue, I have misgivings about the length of time involved and the cumbersome nature of the process in every case. I want to explore the balancing judgment to get this in the right place.
This is a necessary Bill. As I have said, this is not a move that any of us relishes making. We are democrats in this country, and we believe in the rule of law, but if we are to protect our national security and get the balance right, it is essential that we support it.
Mr Andrew Tyrie (Chichester) (Con)
It has been an interesting debate, full of thoughtful interventions, and I have learned quite a bit.
I should like to make three initial points. First, I strongly support the work of the security services, which is essential for our safety. My concerns about the Bill need to be seen in that context. Secondly, I shall refer to the origins of the Bill, and thirdly, I shall deal with what might be at stake, even though we shall discuss it only to some extent this afternoon.
The Bill came about partly as a consequence of the recent exposure of Britain’s involvement in a programme of extraordinary rendition. Bringing all that into the public domain is a matter of deep concern to the Americans, particularly their security agencies. They are worried that our court proceedings could lead to the exposure of intelligence information handed to them by us. The Bill is a consequence, as we have just heard, of the cost and embarrassment of settling a number of civil actions brought by people who have alleged maltreatment. To deal with the first problem, the proposal is to close down the so-called Norwich Pharmacal jurisdiction and, to deal with the second problem, the Government have decided to replace public interest immunity certificates with closed material procedures in most national security cases. I shall come on to the case for those proposals in a moment.
I should like to discuss briefly what is at stake in a broader perspective. All these issues may appear to be abstruse and technical, but they are about the kind of society that we want to live in. It is worth saying a little more about the trigger for the Bill—the issue of extraordinary rendition. We now know that Britain facilitated extraordinary rendition—we do not know its extent—and the Bill may make it more difficult to find out the degree of Britain’s complicity. Senior British public officials have facilitated the kidnapping of people and their transfer to places where our Government knew they might be maltreated or tortured. Last week, Britain paid £2.2 million in compensation to someone who was apparently rendered—and tortured—along with his family, to the Gaddafi regime by British intelligence in 2004. Britain also facilitated the rendition of Binyam Mohamed to Morocco, and apparently he, too, was horrifically tortured. There are other cases, possibly many more: we do not know.
If we do not get to the bottom of our complicity in such disgusting practices, we surrender the moral high ground. We must be wary about extending secret court proceedings for the same reason. Secret courts are usually held to be the tools of dictators, not of democracies, and their prevalence is often a test of whether a society can be called “free”. I am deeply saddened that my country has become involved in kidnap and torture, and I do not want it to be accused—rightly or wrongly—of covering up such things. That, however, is exactly what Britain’s detractors abroad might claim—fairly or unfairly—about this Bill.
Dr Julian Lewis
I appreciate the serious point about getting to the bottom of a given rendition. Does my hon. Friend agree that if we are left with only PII, pay-offs will tend to be given and we will not get to the bottom of cases? However, if a pay-off is made when closed material procedure could have been used, one can deduce that something was amiss because although the Government could have used a more specific route, they chose not to do so.
Mr Tyrie
My hon. Friend makes an interesting point. The judge now has discretion on CMPs—at least, I hope that is where we will end up as a result of efforts in the other place—so we could arrive at a position where we have more justice and not less, which is the underlying principle we are discussing. With respect to Norwich Pharmacal, the case is unarguable. We would know less about rendition had the Norwich Pharmacal jurisdiction been closed down, because it was used to elicit information about the extent of Britain’s involvement.
The Government have argued that CMPs could deliver more justice because they will be able to introduce evidence that they cannot introduce at the moment for fear it will damage national security. How true is that? I do not know—very few Members present in the Chamber do. The special advocates, security-vetted lawyers who are responsible for making CMPs work, are the small group of people with access to the information required to know the answer. They have been unequivocal—the right hon. Member for Knowsley (Mr Howarth) quoted them a moment ago. They say that CMPs are not
“capable of delivering procedural fairness”
and that their introduction
“could only be justified by the most compelling reasons and, in our view, none exists.”
It is worth reading the report by the special advocates in full as it is pretty blistering.
I am grateful to the Minister, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for returning to the Chamber, as he also said that PII was deeply flawed. It is certainly not perfect but, again, the special advocates have expressed a view and said that
“there is as yet no example of a civil claim involving national security that has proved untriable using PII and the flexible use of ancillary procedures (such as confidentiality rings and “in private” hearings from which the public, but not the parties, are excluded).”
Stephen Phillips (Sleaford and North Hykeham) (Con)
That statement may be accurate in so far as it goes, but one case—the Carnduff case—was stayed because it could not be properly tried, albeit that it was not directly in the national security arena. The Supreme Court has said that the principle exists, in which case there will be cases where there is no trial at all unless we use CMPs. Surely my hon. Friend will agree that it is better to go down that route than to have the possibility of no trial for very serious cases.
Mr Tyrie
I agree that a CMP could be of use in some cases. My point is that the special advocates, who are well placed to judge, have looked at the proposals and said that, so far, they have seen no cases in which PII could not do the job.
A cynic would argue that the special advocates have an interest in arguing for more legal work and more CMPs, but it is significant that they have spoken in the opposite direction—against the extension of CMPs. Their lordships shared the concerns of the special advocates, and by majorities or more than 100, shredded that part of the Bill.
The Lords amendments included two crucial safeguards that I consider to be essential. The first, which we have discussed, is that they gave the judge rather than the Minister discretion on whether to hold a CMP. The original Bill clearly gave the lion’s share of that discretion to the Minister, and it is not true, as the Minister said a moment ago, that he gave up that position “months ago”. If he gave it up “months ago”, why on earth did their lordships debate replacing the word “must” with the word “may” only a fortnight ago?
The second crucial Lords amendment was a measure—clause 6(6)—to ensure that a judge should be able to exhaust PII in his search for justice before considering CMPs. Unfortunately, my right hon. and learned Friend the Minister did not say that he would accept it. On the contrary, he used a number of phrases to suggest that he would do no more than consider it, and that he had not yet finished his consideration. I regret that and the fact that we are discussing the Bill so quickly. It needs further consideration and I agree with him on that. The debate should have taken place in January. That it is being rushed through just before Christmas adds to my concerns.
A third safeguard would be valuable. A review should be held after a period to see whether CMPs have led to more rather than less justice. To ensure that the review happens properly, it should be accompanied by a sunset clause—in perhaps seven, eight or 10 years. That proposal was a recommendation of the Joint Committee on Human Rights, the Chairman of which is not in the Chamber at the moment. I would like it included in the Bill.
Having said that, my concluding thought is this: we should remain deeply sceptical of the utility of holding a hearing in which one party is shut out of the case. This is what the former Director of Public Prosecutions has to say on that—I shall quote it in full, because it is so forceful. He said:
“I have spent many years in criminal courts watching evidence that at first sight seemed persuasive, truthful and accurate disintegrating under cross-examination conducted upon the instructions of one of the parties…That is the risk that we are facing, that we are introducing into civil justice—in the most sensitive and controversial cases, where deeply serious allegations are made against the Government and the security services—a process that expels the claimant and gives him a form of justice that is not better than nothing. It is worse than nothing because it may be justice that is based on entirely misleading evidence.”.—[Official Report, House of Lords, 21 November 2012; Vol. 740, c. 1989-1900.]
I accept that, in some very restricted circumstances, one can conceive of more justice being achieved with a CMP than without one, but I am clear in my mind that that must come only after all other existing routes to try to obtain justice, including PII, have been exhausted. The Minister has not accepted clause 6(6) as amended by the other place. For that reason, above all, I cannot accept the Bill.
Stephen Phillips (Sleaford and North Hykeham) (Con)
It is a real pleasure to follow the hon. Member for Islington North (Jeremy Corbyn), who speaks consistently on this and other civil rights issues, even if he does not often agree with the right hon. Member for Knowsley (Mr Howarth). I suspect that, on this occasion, he is also unlikely to agree with me.
I have to confess that I hesitated before deciding to speak in this Second Reading debate, partly because I see a Bill Committee looming and the prospect of 12 days in the spring with the hon. Member for Hammersmith (Mr Slaughter) is not particularly attractive to any of us, and partly because consensus seems to be emerging among the majority of Members that, unsatisfactory though the Bill might be, it is none the less a necessary measure.
There is little disagreement on the first part of the Bill, which will establish a regime for the oversight of the intelligence services that has long been called for. That is much to be welcomed. It is the second part of the Bill, which deals with the closed material proceedings—wrongly, in my view, called secret courts—that appears to cause controversy. I shall focus my remarks on that part of the Bill, although not at length as consensus is emerging and many of the points that I wanted to raise have already been discussed. The right hon. Member for Salford and Eccles (Hazel Blears), for example, identified many of the arguments that I would deploy in support of the Bill being given a Second Reading.
Many lawyers, myself included, regard the Bill as at best undesirable and possibly pernicious. The obvious reason for that is that the principle that has served us well for many years is that we do justice publicly. We also permit full access to the evidence for those against whom allegations are made—whether serious or not; in these cases, they usually are—and for those who make those allegations, in order that a fair adjudication can be openly and publicly be made of their complaint and of what has been said against the accused.
The Government need to persuade those who have expressed concerns that the mischief against which the Bill is said to be directed is so serious that, in the limited number of cases to which closed material proceedings would apply, we need to take a fundamentally different approach from the one that has traditionally applied to the administration of public justice. The Government have identified four problems, although they have not always been clearly articulated. It is worth identifying them, for the sake of those such as my hon. Friend the Member for Chichester (Mr Tyrie) who are troubled by the Bill, in order for me to explain why I think the Bill should be given a Second Reading.
The first is the continued necessity in the security climate in which we the United Kingdom and, indeed, the western world find ourselves to have access to very good intelligence material—material gathered not only from our sources and by our own agencies, but by the agencies and sources that are available to our allies overseas. The difficulty the Government face as regards those agencies capable of providing us with information that is essential for the defence and security of this country is that when something is secret and comes from a foreign intelligence agency and potentially a source of that intelligence agency that might be exposed or, if it is a live source, even threatened, the Government need to be able to give an absolute assurance that that material will remain closed and will remain secret. Without that assurance—this applies not only to the United States but to other intelligence agencies, too—the Government face real difficulties in ensuring that the intelligence necessary to protect all our constituents will be available in this country.
There is, of course, a related point—that the intelligence services here need to be able to recruit their own agents and need to be able to assure those agents from the very first that their identity and anything connected to anything that might reveal their identity will remain secret. That is the first issue that calls to be dealt with, and it supports the Government’s position on part 2.
The second problem, as I see it, is that undoubtedly in the past the Government—perhaps not only this Government but the preceding one—have been obliged to settle cases where they had legitimate defences to the accusations that were made against them, but in respect of which they felt, for the reasons I have already given, that those defences could not properly be advanced, usually for the simple reason that it would expose intelligence sources and, potentially, the way in which intelligence is gathered.
Those settlements are wrong for two reasons. First, there is never any adjudication whatever of the underlying merits of the case, and from the perspective of justice as a whole—and, I might add, from the perspective of claimants as well as that of the Government—that is totally unsatisfactory. Secondly, because the Government have been obliged to settle these cases—a point touched on by the right hon. Member for Salford and Eccles—large sums of taxpayers’ money have had to be paid out. In many cases, they might have been lost by the Government and perhaps the damages were justified, but we do not know where the money has gone in other cases and we do not know, for example, that it has not gone to fund activities that are, putting them at their very lowest, detrimental to the interests of this country. That is the second reason why the Bill, and particularly part 2, is deserving of a Second Reading.
There is a related third point—the reputational risk to this country. These cases are settled, albeit with no admission of liability, in circumstances where, as was said earlier, much of the world will say that there is no smoke without fire. People might say that the British Government would not settle these cases unless there was some truth in the allegations, which does this country enormous damage overseas. It also runs the risk—I say this particularly to my hon. Friend the Member for Chichester—of encouraging those who would see this country damaged by radicalising young Muslim men overseas who will believe that this country has no respect for the rights it is trying to push on the Islamic world.
Stephen Phillips
I accept my hon. Friend’s point, but for my own part I do not think the risk is nearly as great, and I would go further than that. If we carry on calling CMPs “secret courts”, there might be that risk, but we are not talking about secret courts. We are talking about courts in which defendants and claimants are properly represented, where there is access to the information necessary to ensure as fair a resolution of the issues between the parties as possible and, indeed, where the proceedings are overseen by a judge. I shall come back to this in a moment, but the alternative in many of these cases is, as I said in an intervention on my hon. Friend, that there is no justice at all—either because they are struck out or because the Government have to settle them. That is totally unsatisfactory—much more so than the Government’s proposals in the Bill. I think it was the Independent Reviewer of Terrorism Legislation who said that we were in the world of second-best solutions, and indeed we are. No one wishes to see this legislation. I myself have described it as at best undesirable, and possibly pernicious. However, we are where we are. We face the threats that we face, and we have to deal with them.
My fourth reason for thinking that the Bill deserves a Second Reading is that, at present, justice is not done at all in many cases of this kind. As I said earlier, the Government, because they cannot disclose information, are obliged to settle some cases when a perfectly good defence is available to the security services. There are, potentially, other cases—and at least one, which I mentioned earlier, may have already arisen—in which a claimant has a legitimate cause of action which may or may not be capable of being sustained at trial, but owing to the success of a public interest immunity application, information that would otherwise have enabled the issues between the parties to be properly resolved is not available.
In a third group of cases, such as the Carnduff case, there is the possibility of a stay if the public interest immunity application fails, and those are the cases that trouble me particularly. Claimants are essentially being told, “You may have a perfectly good cause of action, but the public interest of protecting national security outweighs the public interest of doing justice in your case.” That seems to me much more undesirable than saying to a claimant, “You may press ahead, but part of the proceedings will take place in a forum that is no longer open to the public.”
The Bill may indeed be a second-best or an undesirable solution, and part 2, at least, may even constitute a pernicious piece of legislation. However, for the four reasons that I have given, I approve of the principle behind it. I believe that that principle has been generally accepted throughout this House, and was finally accepted by their lordships, subject to the amendments that they made. It is a principle from which I do not believe parliamentarians can legitimately distance themselves. It is the principle that we need to be here to protect our constituents, and it is the principle that no matter how unsatisfactory the Bill is, it is the right Bill, and, regrettably, a necessary measure.