Justice and Security Bill [HL]

Lord Pannick Excerpts

Wednesday 21st November 2012 Lords Chamber

I beg to move.

[Lord Pannick]

My Lords, Amendments 36 to 38, 40 and 47 to 49 are in my name and the names of the noble Lords, Lord Lester of Herne Hill and Lord Beecham, and the noble Baroness, Lady Berridge. Amendment 50 has the same signatories save that the noble Baroness, Lady Kennedy of The Shaws, is a substitute for the noble Lord, Lord Beecham, for reasons that I should explain. The amendments, like all the amendments to Part 2 in my name, seek to implement the report published last week by the Joint Committee on Human Rights, a committee on which the noble Lord, Lord Lester, and the noble Baroness, Lady Berridge, serve as members. The amendments also seek to implement similar conclusions of your Lordships’ Constitution Committee, of which I am a member.

Noble Lords will know very well that strong views are held on all sides of the House about whether closed material procedures should be introduced. This is a difficult and sensitive issue. The amendments in my name do not—I repeat, do not—seek to resolve the dispute as to whether noble Lords should approve the introduction of closed material procedures. We will address that issue when we come to Amendment 45, in the name of the noble Lord, Lord Dubs, and other noble Lords. The amendments in my name—particularly the amendments in this group—seek to ensure that if CMPs are to become part of our law, careful controls are needed to limit their application to ensure balance and fairness. In particular, they seek to ensure that a judge in an individual case should have a discretion, not a duty, to order a CMP. The judge should ask himself or herself whether or not a CMP is needed in a particular case as a last resort if there is no other effective means of ensuring both justice and security.

There are three reasons why your Lordships’ House should adopt the approach that this should be a last resort with judicial control and discretion. First, CMPs are a radical departure from common law principles, which we all respect and approve, that a party to a case has a right to see the evidence against him and has a chance to answer it. This is a departure—it may be a necessary departure—from the principle of transparent justice. The Joint Committee addressed this issue at paragraph 16 of its report. It said:

“All of the evidence that we have received, apart from that of the Government, regards the proposals in the Bill which extend closed material procedures into civil proceedings generally as a radical departure from the United Kingdom’s constitutional tradition of open justice and fairness. We agree”.

The second reason why we should be very careful and impose controls on CMPs is that a CMP is inherently damaging to the integrity of the judicial process. Judicial decisions are respected precisely because all the evidence is heard in open court and can be reported, subject to exceptions, and judges give a reasoned judgment that explains their decision.

The third reason why a fair balance involving judicial discretion is so important is that the Government’s own rationale for introducing CMPs is not the protection of national security. It is very important to be clear about this. The law already has effective means of ensuring that any information the disclosure of which would damage national security does not have to be revealed in open court. Those are the rules of public interest immunity. The Government say that CMPs are needed not to protect national security but to ensure fairness to them as defendants and to ensure that as much evidence as possible can be heard by the judge. There may or may not be strength in that argument—these amendments do not address that issue—but if the Government’s own case for CMPs is promoting the fairness and efficiency of civil proceedings, then this House should ensure that the CMP provisions are fair and balanced.

To turn to the specific amendments, Amendment 37 provides that the judge should order a CMP only if satisfied that fairness cannot be achieved by any other means. If there is another solution, such as supplying the gist of the evidence to the claimant, using anonymity orders, or security witnesses giving evidence from behind screens, all of which happens now, and if those methods enable the evidence, or as much of it as possible, to be disclosed to the claimant, it is surely wrong in principle for the law to require the judge to move into a secret hearing. This was the view expressed to the Joint Committee by Mr David Anderson QC, who is the independent reviewer of terrorism legislation. The Joint Committee quoted his views in paragraphs 66 and 67 of its report. Perhaps I may remind the House of what Mr Anderson said:

“I said that I thought that a CMP could be tolerable in these sorts of cases—but only if certain conditions were satisfied. One was that a CMP should be a last resort to avoid cases being untriable”.

At paragraph 67 the Joint Committee adds:

“The Independent Reviewer in his more recent evidence indicated that he would be supportive of building into clause 6 of the Bill a requirement that a CMP only be permitted as a last resort: as he put it, a CMP should be available only if ‘there is no other fair way of determining the case’”.

That was the recommendation of the Joint Committee.

Amendments 38 and 40 have a similar objective. They would allow the judge, when he or she considers whether to impose a CMP, to have regard to the possibility that another solution is available through public interest immunity. Public interest immunity is the doctrine of law that keeps out of open court material the disclosure of which would be damaging to national security. But public interest immunity is not an all-or-nothing matter. As I have said, it may enable some of the material to be disclosed—the gist or essence of the case—and documents can be redacted to preserve what is genuinely confidential. I suggest that the existence of PII needs to be taken into account by the judge in deciding whether to move into secret session. I know that the noble Lord, Lord Marks, is concerned about Amendment 38, but it is important to remove Clause 6(3)(a) so that the judge can consider other means of addressing the problem. Amendments 38 and 40 were recommended by the Joint Committee at paragraph 62 of the report. I will not spend time on it, but again this was a recommendation from the independent reviewer, Mr Anderson. All these amendments are necessary if CMPs are not to be imposed unnecessarily and disproportionately.

Amendments 48, 49 and 50 would ensure that the litigant excluded from the open hearing by the CMP was always given at the very least a summary and the gist of the closed material sufficient to enable him to give instructions to his legal representatives and the special advocates. Again, that was recommended by the Joint Committee, which referred to the supporting evidence on that issue from the former reviewer of terrorism legislation, the noble Lord, Lord Carlile of Berriew, and to the views of the current reviewer, Mr Anderson.

Amendments 36 and 47 seek to ensure that, before ordering a CMP, the judge should ask whether the degree of harm to the interests of national security if the material is disclosed outweighs the public interest in the fair and open administration of justice. The Joint Committee stated in its report, at paragraphs 69 to 72, that the Bill as currently drafted wrongly precludes any balancing at all, however limited the national security interest may be, however substantial the damage to fairness if a CMP is ordered and, indeed, however peripheral the national security evidence may be to the issues in the case. That cannot be right; we need some degree of balancing here. I emphasise that the effect of these amendments, if approved, would not be that any evidence touching on national security would have to be disclosed—PII would prevent that—but simply that the judge could not order a closed hearing unless this balance is satisfied and the Government would therefore be unable to rely on the evidence.

I know that the noble Lord, Lord Beecham, is not persuaded yet by Amendment 50 and that the noble Lord, Lord Marks, is also concerned about it. It might be better if, in due course, I do not move Amendment 50 today but consider with others, in the light of the amendments, if any, that are approved by the House today, whether it is appropriate on Third Reading next week to look again at what is now Amendment 50 for the purposes of tidying up the legislation. I hope that that approach—on Amendment 50—commends itself to the House.

Each of the amendments in this group in my name will help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort in what I suspect will be the very small category of cases where there is no other fair solution that maintains national security. At the appropriate time, and unless the Government are prepared, as I hope they will be, to make concessions even at this late stage on these matters, I intend to test the opinion of the House on the amendments in my name.

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[Lord Wallace of Tankerness]

My Lords, Article 6 has been a very good safeguard for many claimants, or people appearing before the courts, of securing a fair trial. The fact that the courts are expressly enjoined to have regard to it does mean that in particular cases, if the requirements of a fair trial lead to requirements of disclosure, when one comes to that second stage of the CMP process the court would be obliged to order disclosure. However, as I have already indicated, it may well be that in these circumstances the Government take the view that even then, disclosure could be damaging to national security, but they must bear the consequences, as set out in Clause 7(3), if they feel unable to disclose.

I finally come to Amendments 47 to 50. They relate to the second stage of the process—and I indicated before that Amendment 47 has the same considerations that I expressed with regard to Amendment 36. The aim of the provisions is to put more material before the court—not the same amount—so that cases that currently cannot be tried because they hinge on highly sensitive national security material can be heard, leading to real findings on important allegations about government action.

Where the consequences are the inclusion of the material in the case, there is no precedent for including Wiley balancing. Other CMPs that already exist and do not use it have been upheld by the courts as being fair and compliant with Article 6. The position of the Government is therefore that there is no case to include balancing of the sort that is implicit in these particular amendments.

The noble Lord, Lord Owen, expressed concern about the requirement, as opposed to an obligation to consider to require, in terms of disclosure. As a Government we share that concern about this set of amendments. Amendment 49 also goes even further and provides for disclosure under the AF no. 3 principle, meaning that material can be disclosed, even if it is damaging to national security, if that is necessary for the individual to be able to instruct their special advocate. This amendment does not take full account of the judgment of the Supreme Court in Tariq—and I will stand corrected by the noble and learned Lord, Lord Phillips, if I get this wrong—which held that Article 6 does not provide a uniform gisting requirement in all circumstances.

The noble and learned Lord, Lord Mance, said at paragraph 27 that,

“the balancing exercise called for in paragraph 217 of the European Court’s judgment in A v United Kingdom depends on the nature and weight of the circumstances on each side, and cases where the state is seeking to impose on the individual actual or virtual imprisonment are in a different category to the present”—

the present being an employment tribunal—

“where an individual is seeking to pursue a civil claim for discrimination against the state which is seeking to defend itself”.

The noble and learned Lord, Lord Hope, went on to say at paragraph 72:

“The context will always be crucial to a resolution of questions as to where and how this balance is to be struck”.

I could not help but think of the point that the noble Lord, Lord Owen, made, that when so much has been said about judicial discretion, this is perhaps an area where there ought to be proper judicial discretion, and where an absolute requirement on the judges should not be made. Wherever it is possible to provide gists and summaries of national security-sensitive material without causing damage, they will be supplied. In those cases where Article 6 requires gisting of this type, as I have already indicated, Clause 11(5)(c) means that the court will order it.

Finally, Amendment 50, which the noble Lord, Lord Pannick, indicated that he may not move, would instruct the court to ensure that any summaries only do no damage to the interests of national security,

“so far as it is possible to do so”.

I am afraid that that is a risk that the Government cannot take. We cannot say to our international partners that we will protect their information,

“so far as it is possible to do so”.

Perhaps above all, we cannot say to sources who are risking their lives for us, “We will protect your identity and, accordingly, your life and safety as far as it is possible to do so”. We do not believe that that is a risk that the Government should take and we believe that we should be categorical about it.

This set of amendments puts at risk our national security in order to hear compensation claims that can be fairly dealt with by the model set out in this regard in the Bill. The Government’s duty is to protect national security and it is not an optional duty. It is fundamental and some may say that it is our very first duty. Against that background, I very much hope that the noble Lord will withdraw his amendment.

[Lord Pannick]

Before the noble Lord, Lord Hodgson, replies, it may be of assistance to the House if I seek to respond to a specific question put to me by the noble Lord, Lord Owen. I am very grateful for the general support around the House for the concept of judicial discretion in this area and that CMPs should be a last resort, if they are to exist at all.

The noble Lord, Lord Owen, asked me to address Amendments 48 and 49, to which the Minister referred. I am grateful to the Minister for the very careful way in which he went through the amendments. The noble Lord, Lord Owen, was concerned that Amendments 48 and 49 would introduce a duty to provide a summary or a gist of the material if the closed material proceeding is to be ordered. The answer is that disclosure of the summary or the gist would be required only if the Government wish to proceed with a CMP. If they do not wish to disclose the gist or the summary, which is a matter entirely for them, they do not have to do so under the amendment. There simply would be no closed material proceeding. I suggest that that is entirely appropriate if we are to have a fair balance of the interests in open justice and other competing interests. I am grateful to the House.

[Lord Hodgson of Astley Abbotts]

I am extremely grateful to my noble and learned friend for the courteous and extensive way in which he has replied to Amendment 31, on which this debate has hung. Perhaps I may make clear to my noble friend Lady Neville-Jones that this was not to end CMPs: it was merely to narrow the gateway to CMPs by requiring a PII process first. The noble Lord, Lord Pannick, has discussed a number of amendments that give effect to the recommendations of the Joint Select Committee. If I was going to be irreverent, I might say that I regard those as offering 80% of the loaf, as opposed to 100% of the loaf that I was seeking.

However, I have to recognise that the Joint Select Committee has spent a great deal of time on this, a great deal more time than I have. Speaking as it does for both Houses of Parliament, it speaks with great authority. I also practically recognise that 80% of a loaf is better than no loaf at all. I shall seek, with the leave of the House, to withdraw my amendment and then give my support to the noble Lord if he chooses to move his amendments to give effect to the Joint Select Committee’s proposals. I beg leave to withdraw the amendment.

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Moved by

[Lord Pannick]

33:Clause 6, page 4, line 18, leave out from first “The” to first “a” in line 19 and insert “court seised of relevant civil proceedings may, on application of either party or of its own motion, make”

[Lord Pannick]

My Lords, I can be very brief because I can see that your Lordships are keen to move to vote on this matter. Amendment 33 addresses a specific aspect of fair balance. Under the Bill, a CMP may be ordered only on the application of the state. Amendment 33 would provide that the judge is able to order a CMP also on the application of another party to the proceedings or on the court’s own motion. That may be a practical matter for the reason given by the noble Lord, Lord Marks. The claimant, on the advice of the special advocate, may prefer the case to be heard by means of a CMP or at least part of it, rather than to have the evidence excluded altogether, given that the evidence may assist the claimant. I beg to move.

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[Lord Wallace of Tankerness]

My Lords, consistent with the spirit of the way in which the noble Lord moved his amendment, I shall try to be brief, but I think that it is only fair that I explain why the Government are not accepting this amendment.

It is part of the principle behind our system of government that the Executive are the guardian of the United Kingdom’s national security interest. Courts have frequently stated that the Government’s function to protect national security by claiming PII is a duty rather than an option. Correspondingly, we believe that it should be the responsibility of the Secretary of State to apply for a declaration that a closed material procedure may be used. The courts play an essential role in scrutinising the Government’s exercise of these functions, but the question of whether to claim PII, and accordingly whether to make an application for a declaration that a closed material procedure may be used, should be a question for the Government.

In practice, it is the Secretary of State who holds national security-sensitive material and is in the best position to judge the scope and nature of that material, with advice from the security and intelligence agencies. Other parties may not even be aware that the national security information exists. It will remain open to a third party to approach the Secretary of State and request an application for a CMP if they do have reason to want one. If the Secretary of State refuses, that decision could be judicially reviewed.

I accept there is an underlying concern that the Government could inappropriately use this power because there is a feeling the courts are powerless to prevent the Government claiming PII to hide something, and conversely claiming a CMP when it is to the Government’s advantage to have material before the court. I do not think this is a concern that is ever likely to be raised in practice. In the first instance, it is for the Secretary of State to instigate the CMP application or PII claim, and the power to order a CMP or to accept a PII application rests solely with the judge. The judge would be alert to any unfairness to the non-government party, and within the CMP would have the case management powers to be able to ensure that the claim is fairly heard.

That is, in summary, why we would resist the amendment, and I invite the noble Lord to withdraw.

[Lord Pannick]

I am very grateful to the noble and learned Lord. If we are to have CMPs there must be equality of arms and there must be fairness, and it must be open to the applicant to apply to the judge for a CMP to be ordered. I wish to test the opinion of the House.

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Moved by

[Lord Pannick]

35: Clause 6, page 4, line 21, leave out “must, on an application under subsection (1),” and insert “may”

[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.

[Lord Pannick]

The noble and learned Lord is very wise. If we are going to have CMPs, it should be at the discretion of the judge rather than as a matter of duty. I wish to test the opinion of the House.

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Moved by

[Lord Pannick]

36: Clause 6, page 4, line 27, at end insert—
“( ) the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice”

[Lord Pannick]

I beg to move.

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Moved by

[Lord Pannick]

37: Clause 6, page 4, line 27, at end insert—
“( ) a fair determination of the proceedings is not possible by any other means”

[Lord Pannick]

I beg to move.

[Lord Wallace of Tankerness]

My Lords, it may be for the convenience of the House if I indicate that, while the Government do not accept Amendments 37, 38 and 40, we do not propose to resist them at this time. There will obviously be an opportunity to reflect on them.

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Moved by

[Lord Pannick]

38: Clause 6, page 4, line 30, leave out paragraph (a)

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Moved by

[Lord Pannick]

40: Clause 6, page 4, line 42, at end insert—
“( ) Before making a declaration under subsection (2), the court must consider whether a claim for public interest immunity could have been made in relation to the material.”

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[Baroness Stowell of Beeston]

My Lords, I shall speak to Amendment 41 now but I hope it will assist the House if I do not speak to the other amendments in this group until after they have been debated. I shall therefore respond at the end of the debate to both this amendment and the other amendments in the group which have been tabled by other noble Lords.

When I was responding to a debate on a topic which falls within this group, I boldly announced that I am not a lawyer. In the course of my remarks I said something which provoked a strong response from some of the lawyers who were involved in the debate that day and it is therefore a pleasure to move a government amendment that addresses the concerns raised in debate at that time. The point at issue then was the provision of notice by the Secretary of State to the other parties in a case in which a CMP is to be applied for. The Government committed to considering the issue. We gave it more detailed consideration over the Summer Recess and wrote to the noble and learned Lord, Lord Falconer, together with a number of other noble Lords who raised questions at the time of the debate.

In that letter, the Government explained that on further consideration it was clear to us that there were difficulties of both principle and practice with having CMPs without notice. We made it clear that closed judgments would exist without anyone other than the judge and the Secretary of State being aware of their existence if we were not to give notice, and that special advocates would also be unable to take instructions from the individuals whose interests they represent or to communicate with them at all. It was our view that this problem could be sorted out in the detailed rules of court for CMPs. However, the Government have considered this further and believe that it should be safeguarded in the Bill. The amendment provides for two procedures: the Secretary of State must give notice of his or her intention to apply for a CMP to the other parties in the case, and he or she must also inform the other parties of the outcome of the application.

I hope noble Lords will agree that this enhances the safeguards available under the Bill to ensure that the maximum amount of information that can be provided to the open representatives in the case is provided. I hope noble Lords will also agree that this amendment materially advances the continued efforts of the Government to ensure as much openness and transparency as possible, and to ensure that nothing is kept secret that does not need to be for genuine national security reasons. I beg to move.

[Lord Pannick]

My Lords, I shall speak to Amendment 56 in this group, which has been proposed by the Joint Committee. It would ensure that rules of court make provision for the media to be notified of any application for a closed material procedure so that they can make representations on the issue to the judge. The amendment would also ensure that a party to a closed judgment may apply for it to be made open at a later stage. It is not sufficient for the Secretary of State to give notice of an application for a CMP to the parties to the case. The reason for that is that a CMP will severely impede the ability of the press to report legal proceedings. It may be that it is only the media who are concerned about a proposal to introduce a CMP in a particular case; the other parties may not be focusing on the matter or may not object.

It is also essential for rules of court to provide a mechanism by which judgments that are closed can be reopened and published after the passage of time if there is no longer any reason for secrecy. These provisions were recommended by the Joint Committee, and perhaps I may quote what was said yesterday in a lecture by the president of the Supreme Court, the noble and learned Lord, Lord Neuberger:

“Without judgement there would be no justice. And without Judgments there would be no justice, because judicial decisions, at least in civil and family law, without reasons are certainly not justice: indeed, they are scarcely decisions at all. It is therefore an absolute necessity that Judgments are readily accessible”.

I accept entirely that if there is a CMP, of course that part of the judgment will be closed, but it is essential that rules of court allow for the possibility of a later application to open up that which no longer needs to be secret.

[Baroness Kennedy of The Shaws]

My Lords, I support the comments of the noble Lord, Lord Pannick. I serve on the Joint Committee on Human Rights and we were concerned that confidence in the judiciary is absolutely vital in our society. The press coverage of matters and their entitlement to come to a court and to make applications is an important element of democracy and open justice. We would encourage the Government to accept this amendment.

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[Baroness Stowell of Beeston]

It is probably easier if I turn to the other points that have been made in this debate. In the course of doing so, maybe I will receive some assistance that will allow me to answer the noble Lord’s question in greater detail. As if by magic, I have been handed a note. Clause 10(2) gives powers to make rules but these are in consequence of CMPs.

I move on to the question of media reporting and the points raised by the noble Lord, Lord Pannick, and the noble Baroness, Lady Kennedy. The amendment that I have moved, which hopefully the House will accept, means that the parties to CMPs will be notified when an application has been made. In essence, the point was that this is not sufficient in terms of notifying the media. It is obviously a matter for the parties to the claim to decide whether to inform the media. This amendment will ensure that the judge notifies the parties, such that this will be disclosed in the normal proceedings of disclosure that courts make. The noble Lord is looking at me quizzically. He will know more about this than I do, but when the judge notifies the parties that there has been an application, unless it is necessary for him not to do so in the interests of national security, that will be in the public record that exists in the court, which presumably the media are monitoring at all times. This is not about withholding information from the media.

Furthermore, if the media had the right to intervene in this process, it would be necessary for them to have access to all the material so that they could judge or come to a view as to whether it should be a matter for a closed hearing or not. That would be contrary to the whole point of a closed material procedure.

[Lord Pannick]

I am not of course suggesting that the media should have access to the closed material, any more than the claimant does. The claimant is notified but does not see the secret material. The point is that the media should also simply be notified, so that they can object to a closed procedure.

[Baroness Stowell of Beeston]

They will be notified, if not directly, by the process of the court notifying both parties to the claim. If the parties wish to notify the media, they can. The media will also be aware through the court disclosing its business in the normal way. The media will also be aware if the claimant wishes to tell them—as I am sure many will—about accusations that they wish to bring against the Government and the reason for them bringing the case in the first place. It is quite unlikely that the media will not be made aware of the application that has been made for a closed material procedure.

I would also add the point I made in Committee, that the media are not an institution with formal responsibilities to represent the public interest. Once they are notified formally in this way, it seems sensible or logical to me that they would then feel that they need to know more about the case—one limb of the amendment covers this—in order for them to have some kind of useful contribution to make about whether this should be a closed hearing or not.

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[Lord Wallace of Tankerness]

My Lords, I will also speak to Amendment 43, the effect of which would be to add the Supreme Court to the High Court, the Court of Appeal and the Court of Session as the courts that would be covered by closed material proceedings in the context of this Bill.

I think that it is important that there is consistency within the hierarchy of courts covered by these provisions. As I have indicated, this amendment would add civil proceedings before the Supreme Court of the United Kingdom to the list of courts in the Bill in which closed material procedures under Clauses 6 to 11 may be used. At present, the only courts for which this is available are the High Court, the Court of Appeal and the Court of Session.

I understand that there might be some concerns about adding to the list. The reason for adding the reference to the Supreme Court is to seek to put beyond doubt that the Supreme Court is empowered to apply closed material procedures. It was felt that the Supreme Court was likely to be considering points of law only and the Supreme Court already has some of its own bespoke procedures where it can exceptionally exclude parties from proceedings if in the public interest. However, after the Bill was introduced, the Government became concerned that omitting the Supreme Court might be a gap in the legislation. The lower courts would be able to rely on the procedures set out in the Bill but the Supreme Court—the supervisory court for those courts—would have either no exceptional procedure or a different one.

I do not think that the Government are naive. I think that we are realistic enough to realise that once we enact this Bill, the early uses of the procedure in the High Court almost certainly will be appealed in some form or another, and it seems quite likely that at least some of these appeals will make their way to the Supreme Court. This amendment will put beyond doubt the Government’s intention that the Supreme Court should continue to have the ability to consider sensitive material and ensure that we are not left in the very unusual situation of the highest court in the land not being able to adopt the same procedures used in the lower courts.

For completeness, I should add that noble Lords may have noted that the first set of rules of court under the Bill for the High Court and the Court of Appeal in England and Wales and Northern Ireland are to be made by the Lord Chancellor. This is simply a matter of ensuring that the implementation of the CMP provisions of the Bill can occur swiftly. We do not think that the same rationale applies for the Supreme Court. The first set of rules are to be made by the president of the Supreme Court, as now.

I very much hope that the reasons for adding the Supreme Court will satisfy your Lordships’ House. We are not talking about the horizontal scope of the Bill but the vertical reach, namely the courts in the hierarchy that may hear such claims.

Concern was also expressed in Committee that in the future the reference to “relevant civil proceedings” to which there could be an extension by order could include inquests and fatal accident inquiries. That was not the Government’s policy, as we made clear in our response to the Green Paper consultation. We had brought forward a Bill we believed would not allow any Government to add inquests to the definition of relevant civil proceedings now or in the future, but we were grateful to the Delegated Powers Committee’s consideration and we took on board its comments.

Likewise, the report by the Joint Committee on Human Rights also made comments regarding this order. I understand that the remaining concerns are to ensure that closed material proceedings should be used only when absolutely necessary and in a narrow and targeted context. It is for this reason that the Government have tabled an amendment to remove the order-making power completely; in other words, removing Clause 11(2) to 11(4).

I can assure your Lordships that this decision has not been taken lightly. Parliament has legislated for CMPs no fewer than 14 times over the past 10 years. It is conceivable that national security material may become relevant in contexts other than the narrow ones listed in the Bill. The impact of cases not being heard is felt by not only the Government but claimants, whose cases can be severely delayed. Nevertheless, the Government understand the importance of the issue. This amendment will set to rest any fears raised by the Joint Committee that the order-making power could have been misused or that this clause would open the door to commonplace use of CMPs. It will also put beyond any doubt that inquests are beyond the scope of the Bill.

My noble friend the Duke of Montrose has tabled an amendment to require the consent of the Scottish Government and the Northern Ireland Executive for the Secretary of State to make an order to amend the definition of civil proceedings. The Government are committed to properly respecting the devolution settlements, but if the amendments to delete the order-making power altogether are carried, my noble friend’s amendment would not be necessary. I hope that this also satisfies the amendment tabled by the noble Lord, Lord Pannick, and others that takes forward the recommendation of the Joint Committee on Human Rights. I beg to move.

[Lord Pannick]

I am very grateful to the Minister for confirming that the Government are proposing the deletion of Clause 11(2) and the order-making power.

I have a concern about Amendment 43, which includes the Supreme Court in the list of courts that will have power to make a CMP. Given the role of the Supreme Court as the final court of appeal in this jurisdiction, it is highly undesirable that it should decide points of law of public importance in judgments that the public and lawyers generally cannot see.

I do not intend to divide the House on Amendment 43. Given the amendments supported by the House earlier this evening, I would understand that the Supreme Court would have ample discretion to decide whether or not it is appropriate for it as the final court of appeal to order a CMP, and no doubt it would wish to take into account the undesirability, if so perceived, of the Supreme Court issuing judgments that, at least in part, the public and lawyers generally would not be able to see. However, I raise that concern.

[The Duke of Montrose]

My Lords, I thank my noble and learned friend for the way in which he presented his amendments. As he notified the House earlier, if his Amendment 59 is approved, my Amendment 60 will become superfluous. I raise the point that without Amendment 59, there would be a very real danger that anything that the Secretary of State had decided to amend by order in the Scottish courts would be seen as meddling in the affairs of the Scottish legal system. At present, there is nothing more likely to inflame the amour propre of the Scots than actions such as this.

The possibility of this problem was drawn to my attention by the Law Society of Scotland. If Amendment 59 is adopted, we will have a much clearer and more workable piece of legislation than one that is likely to cause controversy. If by any chance it is not carried, I will still wish to bring my amendment forward.

The Bill appears to be walking a fine line on what might be termed issues that might require a legislative consent Motion in the Scottish Parliament and those that would not. Even now, Clause 6(7)(c) of the Bill gives powers to the Court of Session. I understand that early in Committee it was briefly drawn to the attention of the Justice Committee in Edinburgh. Can my noble and learned friend tell the House whether this question of a legislative consent Motion has finally and satisfactorily been resolved?