Justice and Security Bill [Lords]

William Cash Excerpts

Tuesday 18th December 2012 Commons Chamber

[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.