Justice and Security Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Wednesday 21st November 2012 Lords Chamber

[Lord Wigley]

I want to speak very briefly to Amendment 48, which has been grouped with these amendments. I do not accept that this tips the balance, as the noble Baroness suggested just a moment ago.

One of the most unsettling provisions of this Bill is contained in Clause 7, which provides that if a Closed Material Procedure is triggered, a court is not required to give the excluded party a summary of the closed material. Rather, the legislation, as drafted, requires only that the court should consider requiring such a summary to be given. In any case, Clause 7(1)(e) provides that the court must ensure that, where a summary is given, it does not contain material, the disclosure of which would be against the interests of national security.

If this clause goes through unamended, there will be no requirement to give excluded parties sufficient information about the case against them so that they can give instructions to their special advocate. Surely this is wrong, otherwise people could lose cases without being told any of the reasons why, which is an unacceptable situation in circumstances where the national security is not at stake.

[Lord Marks of Henley-on-Thames]

My Lords, I start by paying tribute to the Joint Committee on Human Rights for the very important work it put into producing the thorough and excellent report that gave rise to the amendments in the name of the noble Lord, Lord Pannick, and others.

The first question to be addressed in considering the introduction of CMPs to ordinary civil proceedings is whether the Government have in any way made out a case for their necessity. That is a matter upon which, as the noble Lord, Lord Pannick, pointed out, the Joint Committee found itself unpersuaded. However, if there are 20 such cases now, as figures recently released by my noble and learned friend the Advocate General for Scotland state, as well as the obvious prospect of an increasing number in the future, as the fact that the Government are a soft target for such cases becomes well known, that is a significant number, if a small one. In such cases, because the evidence has to be withheld altogether for the protection of national security—and it is worth reminding ourselves that that is what PII does—there can at present be no determination at all, and therefore no justice. That lack of justice has to be weighed against the damage that would be done to our civil justice system by the extension of CMPs to certain civil claims. CMPs are, as has been said, inherently unfair. They represent a serious departure from open justice, because the evidence cannot be tested by cross-examination in the ordinary way: by advocates acting on the instructions of their clients, who themselves have a full opportunity to know and meet the case against them. CMPs, therefore, represent a justice that is flawed. For my part, I think that to choose to have no determination at all in these cases, and to prefer no justice to flawed justice, would be the better choice, unless the safeguards for CMPs proposed by the Joint Committee are in place.