My Lords, I am certainly not the heavy artillery to which the noble Lord, Lord Hodgson, referred, but I will offer him some small arms fire in support. Amendment 59 is in my name and that of the noble Lord, Lord Lester of Herne Hill. As with all the amendments in this group, and as indicated by the noble Lord, Lord Hodgson, it is a further attempt to address the core problem with which the Committee has been concerned in relation to Part 2 of the Bill: that is, the need to ensure that the court is given power to order a CMP in the exceptional cases in which such a need arises, but only where there is no other fair and proper means of balancing justice and security.
Amendment 59, as the noble Lord, Lord Thomas of Gresford, said, is in similar terms to his Amendment 58. It would ensure that the rules of court would require the judge to ask whether the damage that the disclosure would do to national security would outweigh the public interest in the fair and open administration of justice. The Bill as drafted, as I understand it, would enable a CMP to be imposed even if the judge concludes that the damage done by not moving to a CMP was minimal, and even if the damage to fairness by denying open justice was substantial on the facts of the individual case. That cannot be right, especially when, as we have previously debated, a decision by a judge not to adopt a CMP would impose no obligation on the Secretary of State to disclose the material, because they would have the option of not continuing to defend the proceedings.
Amendment 59 is designed to implement the objective that was stated by the independent reviewer of terrorism, Mr David Anderson QC, in his oral evidence of 19 June to the Joint Committee on Human Rights. He said:
“The closed material procedure is a weapon that could usefully be added to a judge’s armoury, but it should be for the judge to decide on the fairest way to dispose of a case”.
At present, Clause 7 prevents that desirable objective from being achieved.
I will speak also to Amendments 60 and 62 in the group, to which I have added my name. Amendment 60 would require the judge, if ordering a CMP, not just to
“consider requiring” a summary of the closed material to be provided to the other parties—it would require that such a summary of the closed material be provided.
Amendment 62 would require the court to ensure that the summary of the closed material contained sufficient information to enable the excluded party to give effective instructions to his legal representatives and to the special advocate. It would require the summary to satisfy that test even if it would impinge on national security. The reasoning behind Amendment 62 is that it sets out the bare minimum necessary to ensure a fair hearing. It is based on the criteria that were stated by the Appellate Committee of this House in the AF case in 2009 in relation to control order cases. Sufficient information was required by the Appellate Committee in a control order case to enable the subject to give effective instructions, even if such disclosure would have damaged national security. I declare an interest: I was counsel to AF in that case.
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To deny the litigant—whether he is a claimant or defendant—at least a statement of the gist of the case against him so that he has an opportunity to respond is unfair, and whatever other procedures we put in place, it would remain unfair. The Appellate Committee accepted—and it was surely correct to do so—that disclosure of the gist of a case is required because the special advocate, however competent or industrious, cannot himself or herself secure fairness for the litigant whose case is decided through a closed material procedure. The special advocate, as we heard this afternoon, cannot take instructions from the litigant in relation to the closed material, and cannot put the litigant’s case to the witnesses. That is what Mr Angus McCullough, a distinguished counsel and one of the special advocates, said in his evidence to the Joint Committee on 26 June. It has been quoted already this afternoon, but I remind the Committee of what he said:
“The best that we can do … is very limited indeed … We, as the Special Advocates, are in great difficulties in displacing the sinister explanation if we cannot take instructions from the person who is in a position to provide the innocent explanation”.
The role of the special advocate will not prevent the litigant from almost inevitably feeling a deep sense of injustice when the case is decided against him for reasons of which he is not informed, and after a procedure in which he has played very little part. This point was made with some clarity in oral evidence to the Joint Committee on 26 June by counsel very experienced in this field, Mr Ben Jaffey, who practises from Blackstone Chambers, as do I. He told the Joint Committee that he would,
“encourage anyone who finds the idea of a Closed Material Procedure more attractive than the alternatives to come and watch one from the perspective of an individual before deciding that it is a better way of approaching things … I have accompanied quite a lot of people who have sat behind me in court and they have undergone this process of slight realisation over the course of a day or so … The realisation happens when an individual asks the judge or asks the counsel for the Secretary of State exactly what they are meant to have done wrong, and the judge says, ‘I am very sorry but I can’t tell you that’, and then receives the judgment and asks me, ‘I don’t understand why I’ve lost’, and I am afraid I have to say, ‘Well, I don’t either’. Sometimes that process of realisation is quite quick but sometimes it happens much more slowly, and the realisation happens as the person who
is watching one of these cases realises, ‘I’m in a court. There are barristers with wigs on, there are judges, there are formal legal procedures, but there is actually something missing’, and what is missing is the testing of evidence on both sides, which is the basis of our adversarial system. It has many flaws but, in practice, it has tended to work quite well”.
Mr Jaffey concluded:
“That is why I have concerns about extending Closed Material Procedures to civil trials”.
This demonstrates with clarity the inherent unfairness and the reasons why it is absolutely vital to ensure a semblance of fairness in this procedure, whereby the individual concerned is told at least the gist of the case against them.
It is not just that the litigant will inevitably feel a deep sense of injustice when they lose the case and are not told why. Judgments that are reached through a procedure in which at least a summary is not provided to the litigant will inevitably fail to command the confidence of the communities from which the disappointed litigants come. That was a point made earlier this afternoon by the noble Lords, Lord Dubs and Lord Marks of Henley-on-Thames. To adopt this procedure would run the very serious risk of undermining the respect in which the law is held by law-abiding citizens. Those who have no respect for the law may fail to pass on information that the security services require in order to do their job. That, too, would pose dangers for national security. For all those reasons I suggest that we are dealing here with fundamental issues, and that it is vital that the Bill contain the minimum safeguard that the individual concerned should be told at the very least the gist of the case against them.