My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.
It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.
Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,
“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,
concerning these matters, there remain,
“the risks to the right to a fair trial under Article 6”,
of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,
“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.
The commission affirms that it would appear that the Government are,
“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,
a breach of Article 6,
“rather than ensure adequate protection from the outset”.
It advises that,
“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.
That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,
“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.
The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,
“natural hazards along with increases in organised crime are listed as threats to national security”.
It concludes that the Government are,
“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—
and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—
“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.
The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,
“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.
Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.