the irreducible minimum. I hope that the noble and learned Lord, Lord Lloyd of Berwick, will regard it as a desirable policy end to have only the irreducible minimum of material subject to closed material procedures; and that the Government are not skewed by influences that may be around, so that the adversarial nature of British law becomes so much in favour of the Government as to make any semblance of a fair trial impossible. I believe that the amendments I am proposing with the assistance of the Bingham Centre for the Rule of Law are simpler, more flexible and yet contain the same safeguards as Amendments 39 and 40.
Lord Carlile of Berriew: My Lords, there are a few brave souls who are not lawyers still left in your Lordships’ House after 55 minutes of this debate. There are three to my right and I suspect that they are the ones who can recognise that there is quite a small pin with some lawyers dancing the rumba of closed material procedures on it and others doing the cha-cha-cha of PII. We owe it to them to give a comprehensible explanation of the difference and of how a proper outcome of this debate is reached. Given that, I suppose I can be forgiven for confusing the matter further by using two Latin phrases, as old lawyers like me tend to do. The first arises from hearing during this debate from the formidable duo of my noble friend Lord Lester and the noble Lord, Lord Pannick. I am not sure which way round they appear on the spine of the book on my bookshelf—whether it is Pannick and Lester or Lester and Pannick on human rights—but I suspect that age probably comes before beauty. I see the noble Lord, Lord Pannick, nodding in agreement. There is a danger of argumentum ad maiorem on any issue of this kind. Oh, dear. I give way to the older of the two.
Lord Lester of Herne Hill: I remind my noble friend that we are in the presence of the noble and learned Lord, Lord Woolf, who has banned Latin from use in courts. On this occasion it would be desirable if my noble friend spoke English and not some archaic antique language.
Lord Carlile of Berriew: The writ of the noble and learned Lord, Lord Woolf, certainly ran through the courts in those days, but I am not sure that the use of Latin has yet been banned in your Lordships’ House. I want to use what I regard as a very meaningful Latin phrase, which I read in the first administrative law textbook that I studied, de Smith’s Administrative Law, before Lester and Pannick reached the shelves. It was a seminal work and I remember the phrase “audi alteram partem” being an important part of what I learnt from that book. I am pleased to see the noble and learned Lord, Lord Woolf, nodding at least in recollection if nothing else.
Audi alteram partem is extremely important because it depicts that both sides should be heard wherever possible and it is presumed that both sides should be heard in a legal dispute. For those reasons, in shorthand, I support the succinctly moved amendment of my noble friend Lord Hodgson. For the reasons that he and my noble friend Lord Thomas of Gresford gave, it seems that there may be cases in which it is a perfectly
legitimate tactic and it may be proved to be right in substance for a party other than the Government to apply for a closed material procedure—if CMPs are to survive this legislation.
I hope I am right in saying—and it was certainly evident from the way in which the amendment was moved by my noble friend Lord Faulks—that we are all trying to achieve the same thing with this group of amendments. I firmly believe that the draft legislation shows that the Government and my noble and learned friend on the Front Bench, the Advocate-General, are trying to achieve the same aim. The overriding objective, as we call it, is that civil proceedings should be decided justly and fairly for both sides. I therefore agree with the principle that for the overriding objective to be achieved the proceedings should be as transparent as possible and that hearings in secret in which both sides are not heard should be as rare as possible. I certainly agree with that part of what my wise and successful successor as independent reviewer of terrorism legislation, David Anderson QC, has said. I am a little puzzled as to why so many people seem to believe that PII is fairer than closed material procedures. My experience of PII is limited to criminal proceedings, but it is instructive.
In one case in which I was instructed—a lengthy police corruption case—it turned out that, unknown to me as leading counsel for a defendant, there had been a number of PII applications. Some two to three months into the case, the High Court judge trying it came into court and said: “I wish to hold a further PII hearing in relation to some documentation that I have seen to determine whether it should be disclosed to the defence”. He then retired into chambers with leading counsel for the prosecution, his two juniors and a solicitor from the Crown Prosecution Service. After a lengthy hiatus in which we drank a large number of cups of Nottingham Crown Court’s best coffee, the judge emerged in court and two redacted pieces of paper were revealed. They were rather important and my junior and I wondered why we had not been given these documents at the beginning of the trial. We felt that we should have been but, already many weeks into the trial, the prospects of the jury being discharged and the trial starting again were realistically zero. The same would apply in civil proceedings, where, as the noble Lord, Lord Pannick, has confirmed from his experience, which is different from mine, the same processes are followed. The public authority in question makes its application for PII, usually in secret, the other side—the claimant in civil proceedings—knows absolutely nothing about it, and a few weeks into the trial the judge may decide that he or she should review PII.
What the Government are offering through closed material procedures is not for both sides to be heard but, given the provision in this Bill for the appointment of special advocates, in reality it would become the norm for a special advocate to be appointed. Although not instructed by or on behalf of the claimant, the special advocate would represent the interests of the claimant. Having read a very large number of control order case transcripts, including a lot of closed transcripts, I happen to believe that special advocates have sold themselves rather short and that they were extremely
successful, as results have shown, in a large number of control order cases. I was interested and encouraged to hear the noble and learned Lord, Lord Woolf, saying “Hear, hear!” as I made that statement.
Although one would not have a wholly transparent process, one would have a process in which highly skilled advocates, often leading counsel, would represent the interests of the litigants concerned. That looks to me much more like a transparent legal procedure. I do not think for one moment that these procedures, whichever we adopt, should become the norm. They should remain rare. I firmly believe that, although it is inevitable that in almost all cases a public authority will make the application, the decision that determines how the case progresses, if at all, should be made by a judge, having weighed up all the arguments placed before him or her. It is of course inevitable that the issue will be raised in 99 cases out of 100 by the public authority because the public authority is the custodian of national security and of secret material.
Lord Carlile of Berriew: I am sympathetic to any amendment which will improve the justice of decisions made. I am broadly sympathetic to Amendment 62. When I was independent reviewer of terrorism legislation, I frequently expressed the view that there should be stronger discussion between special advocates and those whose interests they represent. I remain of the view that the security services are over-sensitive, if not hyper-sensitive, about such communications. The short answer to my noble friend is yes.
I therefore invite the Minister to assist this Committee, particularly the non-lawyers here, by answering the fundamental question as to whether the Government have chosen a fairer procedure. Surely that is all we are trying to achieve. I say “that is all” but, if we achieve it, it will be a noble achievement indeed.
Lord Carlile of Berriew: They have spoken for themselves and I have read what they have said. The answer is that I do not know. I simply do not agree with them. Each special advocate represents his or her own experience. No special advocate does more than one case at a time. If I have an advantage in this, it is one of observation over a period of years of the work of the body of special advocates.
I say to the noble Lord, Lord Pannick, that there are considerable improvements that can be made in the way in which special advocates receive and carry out their instructions. However, there is no doubt that they have been more effective than they diffidently appear to accept.
Lord Woolf: My Lords, I should perhaps begin by making certain disclosures. First, I have to confess that, together with the director of the Bingham Centre for the Rule of Law, I am among the editors of De Smith, which was referred to in argument as a book that deals with some subjects that are dealt with so admirably by the other book that has been referred to. Secondly, and perhaps more significantly, I should indicate not only that I was a judge who had to deal, as I did from time to time, with PII applications in both criminal and civil proceedings, but that for five years I was what was known as the Treasury Devil, one of whose tasks was normally to appear on behalf of the Government in cases where PII was being sought because of national security. I therefore have a certain degree of practical experience of the position as it arises, alive, within the court system.
The position in criminal proceedings is different from that in civil proceedings, because the issues in criminal proceedings are different from those in civil proceedings. In criminal proceedings, the state is bringing the prosecution. It has the burden of producing the evidence that is to be relied upon. One of the criticisms that have understandably concerned special advocates is that, if the defendant in criminal proceedings does not know the case that is being made against him, it is very difficult for him to give instructions that may be highly relevant and which the special advocate would wish to have in order to do what he is obliged to do: represent the defendant.
In civil proceedings, on the other hand, the probabilities are that the claims for PII or closed proceedings will arise on the grounds of national security where the state is the defendant as opposed to the equivalent of a claimant in civil proceedings, and the person who is the claimant will have full knowledge of the case that he wants to present so as to get the relief that he is seeking. There may be civil proceedings—I put it only as “may be”—in which a special advocate who represents the interests of the claimant can do that more successfully than is possible in criminal proceedings. There may not necessarily be the same inherent unfairness that is always involved in the use of special advocates in criminal proceedings.
While I still stress that the claimant may be under a real disadvantage, and the proceedings may be inherently unfair in that respect, special advocates are certainly better than nothing so far as the party who is being represented by them is concerned. I apprehend that if one were to question special advocates, they would always concede that what they could do was better than their not being there. It is a contribution that must not be ignored, although obviously if one does not need to have secret proceedings and if one is able to disclose all the evidence, the best possible way for that to be done is for it to be done in public, as it should be done in normal civil or criminal proceedings. However, as I say, a special advocate being there is better than nothing.
That brings me to the approach that we are adopting in this legislation. I would say that it has been accepted that there is a need for a procedure that enables in the very few cases that involve national security for material
not to be placed before the court in circumstances in which the judge can rely on it. That can be important to the claimant and to the Government because, if the evidence and material are not placed before the court in that situation, the judge may be aware of the material but cannot rely on it in coming to his conclusions, because it is part of his responsibility to determine cases on the evidence that is placed before him in court, whether it is placed before him in the normal way or in the special way that we are considering here.
Only in a small minority of cases is it necessary to resort to the special procedures that we are debating in the course of these proceedings. Certainly on the basis of my experience, usually you can find ways of squaring the circle—ways in which the evidence can be put forward so that it is valuable to the judge without having to risk causing damage to such interests as national security. Justice is done through the advocates involved co-operating, through agreements that certain things are to be redacted, and through the trust that usually exists between the advocates appearing in the proceedings on behalf of the Crown in matters of these sorts and the advocates appearing on behalf of the other parties.
As has been said in argument and as appears in the overriding principle set out in Part 1 of the CPR, the court is seeking to achieve justice, and that should always be the criterion that has to be applied. I would urge that flexibility is very important here. PII has been developed as a common law principle, and if it is accepted on all sides, as I believe it is, that PII in the present proceedings should remain, I question whether we need to reduce into statute that which the common law has developed. Of course, if the common law has developed it, it can continue to develop according to new circumstances that we may not anticipate in the course of the argument taking place in this debate.
I would also urge that it is highly undesirable that we should put the seeking of a PII and a closed hearing into separate watertight containers. If the judge hearing the matter is going to do justice, it is important that he should have before him the knowledge that PII is still available and he can say whether the best way to deal with the matter is through PII or the alternative—through a closed hearing.
The hearing itself might have to be conducted in an unusual way, or might have to be closed, to discuss these matters. However, on this sort of issue the special advocate can be of great assistance to the judge as to the best way of going about it. The advocate on behalf of the Crown will be before the judge and the special advocate can be before the judge, and the judge will take care to ensure that the best way of achieving justice in the situation before him is the one that is adopted.
Many of the amendments here set out principles that I find wholly admirable on the procedure to be adopted on PII. They could have been contained in a text-book; they do not have to be in a statute. So long as it is absolutely clear, as I believe it always has been, that PII is still available, I suggest that that is sufficient for legislation.
Lord Lester of Herne Hill: I respectfully agree with everything that the noble and learned Lord has said. Does he appreciate that the reason for this variety of amendments is to achieve precisely the position that he would advocate, and that to get rid of straitjackets seems to be present in the Bill as it stands?
Lord Woolf: I agree that there are dangers, in the way the Bill is drafted at present, of it being thought that there is a straitjacket, but there would be an equal danger of a straitjacket if we adopted either of the alternative forms of amendment that have been proposed so far, although I am bound to say that I prefer the option of the noble Lord, Lord Thomas, and the reasons he explained, to the reason previously put forward by the noble Lord, Lord Lester, and others. If you come second in line in putting forward amendments, you can usually do things marginally better than the previous attempt, and I think that has applied here.
As the noble Lord, Lord Pannick, rightly pointed out, the Bill as it is at present is not as clear as it should be. It is very difficult to express it in a more satisfactory way than has been expressed already, but it could be done and I am sure that if the matter is reconsidered it will be possible to make the situation clear beyond peradventure. I would urge that this approach is adopted.
I should also make it clear that I think that the noble Lord, Lord Carlile, is right in saying that in most situations that are covered by the Bill the result will be preferable to both sides if the closed hearing procedure is adopted rather than PII, because PII has the very unfortunate effect that you cannot rely on the material that is in issue, whereas both the claimant and the Government may want to rely on that material. That is a good reason for having the closed-hearing procedure.
Baroness Berridge: My Lords, I had planned to speak to Amendments 39 and 40 but what I am about to say relates to what is now being described as the overriding objective of this group of amendments. Whichever it is, it is important that the name “public interest immunity” is retained as, even when we are dealing with national security-sensitive information, it is not government immunity, although it is often claimed by the Government as a party. When it is, it is done on behalf of and for the benefit of the public and not the Government.
Amendment 39, which proposes statutory PII rather than the closed material procedure, represents the conclusion reached by the Joint Committee on Human Rights, of which I am a member. The evidence base required for the fundamental change to closed material procedures in civil proceedings was not fully established before the committee. In fact, the incremental, judge-led development of PII was praised as flexible and creative, and, crucially, as balancing the public interest in the administration of justice against the public interest of non-disclosure if national security was at issue. In particular, the case of Al Rawi in my view does not provide evidence, as the Government maintain, as to justify changing our court procedures.
This amendment would require the Secretary of State to make a claim for public interest immunity in cases of national security-sensitive information. It would also assist the Government in ensuring that, as they state,
“nothing in these proposals will enable evidence which is heard in open court under present arrangements to be heard in secret in future”.
I presume that “open court under present arrangements” includes cases where the balancing exercise for public interest immunity is currently used, with both parties, crucially, remaining in the hearing.
It was clear neither to the witnesses to the Joint Committee nor perhaps to the Constitution Committee of your Lordships’ House—or it might just be me—that closed material procedures as envisaged by this legislation would be used only for residual excluded material. This point was first drawn out at Second Reading by the noble and learned Lord, Lord Mackay, whom I can do no better than to quote. He said that,
“the result of which”—
“causes me to emphasise that it is important that the judge in the case has a jurisdiction to decide what has to be disclosed. For example, if it is possible to remove the difficulty by redaction or some other procedure of that kind then the whole difficulty disappears and closed procedure would not be necessary. It is only when there is a residue of material that the judge considers is required to be disclosed and considers that the necessary disclosure would be damaging to national security that this procedure is available”.—[
, 19/6/12; col. 1674.]
Will my noble friend the Minister outline whether the Government accept that analysis of the Bill; that is, that there would still be done first a disclosure-balancing exercise—involving redaction, for instance—which would leave the court with a residue of material? If the Government accept that analysis, it needs to be clearer in the Bill, which is what Amendment 39 would achieve. What procedure other than PII as in Amendment 39 is better at determining this category of excluded material?
I note from the very helpful and comprehensive letter from the noble Lord, Lord Henley, and the noble and learned Lord, Lord Wallace, that Clause 11 retains the common law rules on PII. I do not believe that that is contentious, as public interest immunity applies to many other areas of public interest besides that of national security. The letter also helpfully outlines what the Government maintain is the two-stage process involved in reaching the final decision to have a closed material procedure. First, the Government consider making an application for public interest immunity and then ask for a closed material procedure. At the second stage, each piece of evidence is considered for either open or closed session. However, the noble and learned Lord, Lord Mackay, described a different process, with a judge having a jurisdiction to decide first what is to be disclosed.
It may be that the disclosure-balancing exercise referred to by the noble and learned Lord, Lord Mackay, remains under the judge’s duties under CPR 31 or under any inherent jurisdiction to ensure a fair trial. Will the Minister further clarify whether the process begins with disclosure, as outlined by the noble and learned Lord, Lord Mackay, or with the consideration of the PII application as per the Minister’s letter?
Without the amendment, I fear that PII in national security cases will end up being very rarely used. In evidence to the Joint Committee on Human Rights on 26 June, Martin Chamberlain QC, a practitioner in this area, stated:
“What I … had expected when we heard that it was to be a judge who would decide whether to trigger a Closed Material Procedure is that the judge would be empowered to say whether the case in front of him or her was one that fell into that 90% that can be perfectly fairly tried using existing procedures or that 10% or 5% or 1% or whatever it is that cannot. But the Bill does not provide for that; the Bill says that, if there is any document at all whose disclosure would be damaging to national security, the judge must accede to the application to order a Closed Material Procedure”.
I believe that the Government’s assertion that the decision in principle to have a CMP is a judicial one is uncontroversial. However, unless the Government are required to apply first for PII, as the amendment provides, the judge cannot choose between PII and CMP and thereby the method which he or she judges would result in a fair trial. In the legislation as it stands, that choice is open only to the Government, which limits the tools at the judge’s discretion. I support the amendment because it would provide the best mechanism for establishing what residual excluded material is and retain as far as possible the flexible judicial tools needed to ensure a fair trial.
The Government rely heavily on the Guantanamo case of Al Rawi. It is clear from the Minister’s letter that no PII application was made in that case. I find the wording in the letter rather interesting. It states:
“The only option would have been to claim PII for the material. This process could have taken up to three years to complete, but it would have made no difference: if it was successful the very material the government had in its possession which was relevant to the determination of the claims would have been excluded”.
I find it odd that the Government should decide conclusively that obtaining a judicial decision on a matter would have made no difference. In fact, it would have made an important difference, as the judge might not have agreed with the Government that all the material needed excluding and could have used the balancing tools to bring some of that material into the trial. The Government, not the court, decided that PII was inadequate in that case. I would have felt more at ease if we had had a judicial exercise of PII in that case, with huge amounts of evidence having been excluded. The Government might even have made an application to strike out the case because so much evidence had been excluded.
I do not understand this being the Government’s only option and nor did the Government, as they applied in that case for a closed material procedure. It is because of the Supreme Court case in Al Rawi that the matter has been passed to Parliament. An adequate explanation has not been given as to why the Government settled that litigation before the conclusion of the proceedings that would have determined whether a closed material procedure could have been used.
I hope that the Minister will be able to provide in his response further clarification of the 63 PII certificates signed by Home office Ministers which were helpfully outlined in the letter. How many of those cases led to the complete exclusion of the documents covered in the certificate and how many led to a balancing exercise and certain of the material being brought into the case?
I expect the Government to oppose the amendment, but I hope that a more satisfactory explanation of that issue and the issues that I have outlined in relation to Al Rawi will be provided before Report. Amendment 39 would ensure the curtailment of CMPs only to material currently not heard by the court, thereby achieving, ironically, the Government’s own objectives. Without the amendment, the Bill leaves open the possibility of the Government picking and choosing either a CMP or PII on the basis of whichever they favour. If the Government thought that it had the best chance of succeeding if the whole document were excluded, they would be tempted to apply for PII, otherwise they could ask for a CMP if they wanted it to be considered. What crucially distinguishes PII is that both parties are there, and the absence in CMP of one of the parties, where they are excluded, needs to be given greater weight.
Amendment 40 would provide a vital caveat when a court was allowed to consider, as a last resort, using a CMP. First, it must be the only way in which the issues in the case can be determined. It is imperative to be so stringent when one party is being excluded from the hearing of their claim. Also, importantly, as other noble Lords have outlined, Amendment 40 would give any party to the proceedings the opportunity to make an application for a CMP, rather than just the Secretary of State. The Government generously state in the letter I have outlined:
I was amused by this assertion and would be grateful to know of any other situations in which one party to the proceedings has to go and ask another party to the proceedings to make an application for them. Amendment 40 quite properly gives both parties equality of arms.
Finally, I raise a small but important point. Amendment 40 outlines that the matter “can be determined”. This is important as it is conceivable—and we have heard a lot in Joint Committee about what is conceivable when dealing with national security— that there may be cases where the judge is satisfied that disclosure would be damaging to the interests of national security but even a CMP cannot determine them. For instance, the sensitive material may be so central to the issue in the case that the judge, who is not an omniscient being, believes he or she cannot make a judgment on it without questions being put to the claimant or, at the very least, the special advocate being able to take instructions. I believe and hope that this situation is addressed by the wording of Amendment 40. I support these amendments.
Baroness Manningham-Buller: My Lords, I hesitate to rise in this very interesting debate, which has been monopolised by noble and learned Lords. I am not learned, so the point I would like to make is a practical
one and very short. As the independent reviewer of terrorism has noted, there are a very few cases that are so saturated with extensive roomfuls of highly sensitive material that talking about the odd document and the residue will not work. I make that point because I think there are these very few cases where the whole case is substantially based upon highly sensitive material, and we need to be aware of that.
Lord Falconer of Thoroton: It has been an excellent debate. I would like to single out for special mention the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Manningham-Buller, the only two non-lawyers who participated. It is important that we put this debate into a non-legal context because normally the legal answer that follows comes from the facts.
In the next two days of Committee we shall deal with two completely different problems. The problem we are dealing with here is not ultimately the protection of national security; it is how there can be fairness in a trial brought by a claimant for damages when he alleges things against the Government to which they may well have an answer which if disclosed to the claimant would damage national security. I say that national security is not in play in this first group of issues is because ultimately the state can refuse to disclose that material in litigation. They can protect national security that way, and indeed they will, but at the cost, as they would see it, of unfairness to them in not being able to deploy their full case.
In this first group of amendments—those to Clauses 6 and 7—we are dealing with fairness in the context of a claim for damages or judicial review being brought against the state. Just picking up what the noble Baroness, Lady Manningham-Buller, said, which seems absolutely right, it is easy to envisage a situation where a Minister or government department has come to a conclusion based entirely on intelligence material which would in this hypothetical case reveal the reason they came to it, but they cannot disclose a word of it because it would damage national security. That is the situation that the first section of this debate is dealing with—fairness.
The second group of amendments—which we shall come to, perhaps, in five years’ time at the rate we are going at the moment, having had an hour and 38 minutes on this absolutely fascinating topic—is not ultimately to do with fairness but with national security. The amendments touch upon Norwich Pharmacal orders, where the court can order disclosure of information or documents to a claimant and the defendant is not able to say, “OK, we leave the pitch here and we do not agree to any of that”. They must, under the current arrangements, disclose things, and that has two potential affects—
Lord Lester of Herne Hill: I am just wondering whether it is right for the noble and learned Lord to put these issues into such neat boxes. Let us take the case of Binyam Mohamed and assume that there was closed material procedure so that the Government would not have had to pay a lot of money to settle the
case. That would be a case saturated with national security on both sides. I am not speaking with any personal knowledge of the case, but Judge Kessler in the United States would have looked at the material showing serious ill-treatment. He would have wanted that material to be put forward. No doubt there would have been material within the intelligence and security service showing that Mr Binyam Mohamed was not an ideal citizen. Both sides would have been reliant upon heavily saturated material from the intelligence and security service. Therefore, I suggest national security would be involved in the first category as well as the Norwich Pharmacal one.
Lord Falconer of Thoroton: I have read the eight judgments in the Binyam Mohamed case and, although it was dressed up as a judicial review application at one stage, the case was essentially an application for a disclosure of documents and is therefore a Norwich Pharmacal case.
Lord Lester of Herne Hill: I am talking about when he was seeking damages in the civil claim after he had been released and brought back to this country. That is the process to which this would be relevant.
Lord Falconer of Thoroton: Yes, indeed, and in relation to that the Government would be free to withdraw their defence—indeed this is the route that was taken, as I understand it—at which point national security would be protected. It is that situation that we are dealing with first. As I was saying in relation to Norwich Pharmacal, which we shall deal with at a later stage in proceedings, the Government do not have the option of withdrawing from the case. The consequence of this is that they may be forced to disclose information that any reasonable person would think damaging to national security. Equally significantly, those foreign intelligence agencies that provide us with information might consider that it is no longer politick or sensible to do so.
This evening, however, we are dealing with the category of fairness in the context of civil proceedings, rather than danger to national security. The change proposed by this Bill is significant. Very helpfully, in answer to one of the many reports that Parliament has produced on this issue, the Government have set out the list of circumstances in which closed proceedings are possible at the moment. Generally, they are terrorist-related and not usually in relation to resolving a dispute between two civil claimants; it is about whether the state is going to do something not good as far as the individual is concerned. Therefore, this would be a significant change.
Issue number one for the Government is to establish that there is a sufficient problem—unfairness to the state—to demand this quite significant change. Here in the Chamber we are all aware that in the Al Rawi case the Supreme Court said closed proceedings generally are not fair. That does not mean this is not the answer because it may be the best that can be done. However, we need to pause before introducing a system where, as the noble and learned Lord, Lord Kerr of Tonaghmore, said—and everybody agreed with this—closed proceedings
could lead to a situation where a judge is looking at material that is not only not cross-examined but might be misleading.
What is the case for the change? The Joint Committee on Human Rights, on which the noble Lords, Lord Faulks and Lord Lester, and the noble Baroness, Lady Berridge, sit, had quite detailed hearings about this. To start with, it did not get any evidence. After it closed its witness sessions, it got evidence from Mr David Anderson QC who said that there may be “a small but indeterminate” number of cases,
“both for judicial review … and for civil damages, in respect of which it is preferable that the option of a CMP … should exist”.
“there was material of central relevance … that it seemed highly unlikely could ever be deployed”,
David Anderson QC divided his two sets of cases into judicial review and ordinary civil damages claims. The judicial review proceedings were all in respect of refusing naturalisation or excluding an undesirable from this country. Those judicial review proceedings are now dealt with under Clause 12, so we put them to one side. He said that three civil damages claims were the foundation of his case that there was this small group of cases in respect of which CMP might be useful.
In response to what David Anderson QC said, a number of special advocates put in evidence in which they questioned his conclusion that the evidence referred to could be deployed only in closed session. They referred to the fact that in every case in which they had been involved, which slightly reflects what the noble and learned Lord, Lord Woolf, said, there always proved to be a way, whether by redactions, gisting or some other means, in which the material was deployed in some way without damage to national security. That is where the evidence rests at the moment.
I should say that I was Solicitor-General for a period of time. One of the things that the Solicitor-General does is look at PII certification. There were some difficult problems that were getting worse when I left the post. I suspect that they got worse after I left because the situation in the world changed. I should also say that David Anderson gave very sensible advice and was highly respected. We are in a position where the only person who has seen the detail of the cases is David Anderson QC for whom I have great respect. We are also in a situation where it is perfectly possible—the noble Baroness, Lady Manningham-Buller has said this—to envisage cases where intelligence is completely the defence on which the Government would legitimately rely but could not disclose. As the Joint Committee on Human Rights has said, the Government have slightly damaged themselves by the strange way in which they have deployed their case. We are willing to be persuaded, but we need to be persuaded.
Baroness Berridge: There is a slight update on the position of the Joint Committee on Human Rights. As a result of Mr David Anderson QC seeing those cases, he came back to give evidence to us. The suggestion was put to him that the special advocates look at those three cases. After he saw those cases and said what the noble and learned Lord has outlined, we received
representations saying, “That is not a correct procedure. We need to go in as well to see those cases and to see whether they cannot be dealt with”. At the moment, I believe that the special advocates with security clearance have been invited to go in and look at those cases, so that we can have two views on whether those cases can be determined under the present system.
“The flexible and imaginative use of ancillary procedures (such as confidentiality rings and ‘in private’ hearings) has meant that to date there is no example of a civil claim involving national security that has proved untriable”.
So the committee is saying that there may be ways around that. I find it difficult to imagine that the key point about the closed material procedure is that the claimant does not see the documents. From what has been said—this may well be right—the claimant is the person you do not want to see the material. How does a confidentiality ring or an in-private hearing deal with that fundamental point about closed material proceedings? From this side of the House, we understand what is being said but query whether the case is yet proved.
On the second issue, let us assume that you need something because the case is to be treated as proved in relation to these three cases, which is what is relied on. Is what the Government are proposing the right answer? Remembering that the point here is fairness and not the protection of national security, in our respectful submission, the solution is obviously flawed. There are two problems with it. First, it says that where a Minister certifies or contends that national security would be damaged—no balancing exercise: end of story—closed material proceedings are allowed. No balancing would be allowed.
“The Secretary of State may apply to the court seised of relevant civil proceedings for a declaration that the proceedings are proceedings in which a closed material application may be made to the court … The court must, on an application under subsection (1), make such a declaration if the court considers that … such a disclosure would be damaging to the interests of national security”.
“the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.
I cannot believe that that is what the Government intend in relation to this. They do not even include in the provision anything along the lines of “Before you do that, think very carefully about whether the problem can be avoided by any one of the many means currently used”. My two big worries about the Bill in this respect would be, first, that there is no balancing exercise and, secondly, that there is no requirement for there to be thinking about whether there are means by which it could be avoided in other ways.
The noble Lord, Lord Thomas, and the noble and learned Lord, Lord Woolf, came together in an unusual combination in relation to this. They said that maximum flexibility is the answer and I agree. This is not a maximum flexibility situation. For the two reasons that I have given, I would respectfully submit that the Government have got it wrong in relation to this.
What is the answer? For the reasons I have given, I think that what the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, have proposed does not quite get there. I cannot understand why the obvious answer, at the moment, is that you give a judge the power to rule that it is PII and is not disclosed; or that it is disclosed in full; or that, in exceptional circumstances, it should be heard in a closed material proceeding. With the amendment in the names of the noble Lords, Lord Faulks, Lord Lester and Lord Pannick, you end up in a situation where only if you say no to disclosure can there then be a closed material procedure. However, there must be cases where it is a finely balanced thing. If the court was forced to choose between disclosure and non-disclosure, it would choose disclosure, but if it also had the option of a closed material procedure, it would take that. The amendment does not allow for that flexibility.
Lord Lester of Herne Hill: The spirit of liberty is the spirit that is not too sure that it is right, but I tried to indicate agnosticism about the precise way of approaching it. I entirely agree with the noble and learned Lord, with the noble and learned Lord, Lord Woolf, and with my noble friend Lord Thomas of Gresford that flexibility is key and that if we can achieve that, we do not want to put it into a straitjacket. We simply produced a form of words that were an attempt to be formal but were not intended to be the last word at all.
Lord Falconer of Thoroton: I hope that the noble and learned Lord, Lord Wallace of Tankerness, takes the same view of this Bill. I am grateful for what the noble Lord, Lord Lester, said and one can recognise that view around the House. I am not yet persuaded of the need for it, but it could be that the noble and learned Lord will persuade me. If there is a need for it, the question is then: what is the right course? In my respectful submission, neither the Government’s proposals nor the amendment quite get there.
With the greatest respect to the noble and learned Lord, Lord Woolf, who I agree with in relation to flexibility, in the light of the decision in the Al Rawi case I do not think it is possible simply to leave the position for the common law to develop. As I understand the Al Rawi decision, it is effectively saying, “You cannot have a closed material procedure unless the parties agree; and even then we are not sure”.
Lord Falconer of Thoroton: That was my fault. More generally, I have two further points. First, I now understand the point made by the noble Lords, Lord Hodgson and Lord Thomas. I did not understand it previously. I thought that they were talking about the claimant keeping material back, but I now understand that they were saying that it should be possible for the claimant to say that he has not seen the material, but that the judge should see it, even if the claimant does not. I can see force in relation to that. Even though it appears to give equality of arms to the claimant, it is in fact a very unequal equality because the claimant has not seen the material and the defendant has seen it. The tactical decision that the claimant will make in litigation is quite tricky.
Lord Falconer of Thoroton: Yes, and indeed my noble and learned friend—although I should not refer to him as learned, but he is learned in every other respect—Lord Beecham is saying that that is exactly the point that the noble Lord, Lord Thomas, made. There is agreement all round on that.
Where we come out in relation to this is: prove your case. If you do that, then having no balancing or requirement to go through steps beforehand is an inadequate response. We favour more the amendments tabled. We particularly like the idea of flexibility that the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Thomas, have advanced. We hope that the Government will, having heard the debate, produce a reformed approach that will reflect a pretty unanimous view around the House on how best to deal with this issue.
Lord Wallace of Tankerness: My Lords, I join the noble and learned Lord, Lord Falconer of Thoroton, in congratulating all who have taken part in the debate. It has been very helpful. I certainly welcome the spirit in which various proposals were put forward.
Perhaps I may deal first with the noble and learned Lord, Lord Falconer, who said that he remains to be convinced. I noted that most other contributors to the debate thought that there were cases, albeit a small number, where closed material proceedings would be required. He quoted David Anderson QC, who has had access to some of the material and has been satisfied. There is only a small number of cases. No one is claiming that there is a huge number, and I will come on to that in a moment. There is the experience of people such as the noble Baroness, Lady Manningham -Buller, who have seen the kind of cases where this issue could arise. I generally agree with the analysis where the noble and learned Lord, Lord Falconer, indicated at the outset of his speech that there were two different issues here—fairness in civil proceedings that by their nature are not of the Government’s instance, and other cases that we will consider later in Committee with regard to Norwich Pharmacal.
“we consider that the prospect of claims alleging very serious wrongdoing on the part of state agencies (such as complicity in kidnapping, forced disappearances and torture—as have been made in several recent cases) being dismissed because key evidence inculpating state agencies is held to be immune from disclosure, to be a very concerning one from the perspective of the rule of law”.
We are seeking to ensure that there is material there and, if so, that it can be placed before a judge, obviously subject to safeguards, and that if national security issues are involved they would not be prejudiced by the material coming into the public domain.
I detected in the debate a sharing of that objective. It is perhaps worth reminding the Committee that in the Green Paper that the Government published last year, we made it clear in paragraph 2.4 that:
“CMPs should only be available in exceptional circumstances, and where used, every effort is and should continue to be made to have as much material considered in open court as possible. But in the small number of cases where sensitive material is crucial to the outcome, it is better that the court should be able to decide the case, despite the additional complexities a CMP might create, than—in a worst case—that the case should not be tried at all”.
“An appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.
Perhaps I may first address the amendment of my noble friend Lord Faulks. It would introduce a system of statutory public interest immunity for national security material only. I fully recognise that the purpose of the amendment is, as it were, as a precursor to Amendment 40. As the noble and learned Lord, Lord Woolf, indicated, nevertheless it would represent a change from a situation where public interest immunity has proceeded on a common-law basis. Putting it on a statutory footing would be a significant change. We obviously need to put closed material proceedings in civil cases on to a statutory footing, because in Al Rawi the Supreme Court indicated that there was no common-law basis for them. We are dealing with two different things in that respect.
PII is a principle that the courts have developed over a number of years to deal with the handling of sensitive material, and a wide and flexible range of public interests falls within its ambit. However, I have concerns that to change all these things may lead to more difficulties than the problem the change was intended to resolve. The Government ruled out a statutory PII in the Green Paper because it would offer little advance on the current system in providing clarity on the applicable principles, stability and certainty. If you start to create a statutory presumption in relation to national security when PII is asserted, it would start to raise questions when PII is claimed and sought in respect of some other grounds.
However, I accept that the primary purpose of the amendment was to prepare the way for Amendments 40 and 47, on which my noble friends Lord Faulks and Lord Thomas raised important issues about the relative benefits and interaction of closed material proceedings and public interest immunity.
My noble friend Lord Faulks asked whether Clause 6(5) was a tick-box exercise. It is important to emphasise that it is a statutory duty. The Secretary of State would consider whether a claim for PII should be made before applying for a CMP on the basis that it is a statutory duty and a legally binding obligation. Were someone to apply for judicial review of that exercise, the Secretary of State would in practice need to show the court that he or she had in fact properly considered PII as an alternative to a CMP application. That entails giving the matter serious consideration, taking into account all relevant considerations, ignoring irrelevant ones, and coming to a rational conclusion on the facts of a particular case.
The statutory duty would mean that, were PII successfully claimed, for example, the Secretary of State would consider factors such as what this would mean in terms of exclusion of materials which CMPs would otherwise allow the court to take into account. It may relate to the volume of national security material, or only one piece of evidence in the case might be relevant. Why go through the requirement for PII if indeed there is only one piece of evidence or—at the other extreme, and this is the term that has been used—if it is saturated? It may also relate to how relevant or sensitive the national security material is to a particular case. However, it is not a tick-box exercise.
Lord Lester of Herne Hill: I do not understand why it is sensible to do this by way of satellite litigation—judicial review of a Minister—rather than leaving the judge at the centre to make the judicial decision himself.
Lord Wallace of Tankerness: My Lords, I come on to why I do not agree that the PII ought to be exhausted first, and that that should be the test of what should apply with regard to an application. I have indicated why it would not be advisable, and I totally accept what my noble friend said: he is agnostic as to the terms of this. We are just trying to find a way of reaching proceedings that are acceptable.
Lord Lester of Herne Hill: Just to clarify, I am not talking about which comes first. I do not understand why it is sensible to say that a Minister makes the decision, and then it can be judicially reviewed. Why is that a more practical and sensible approach than leaving the flexibility to the judge from the very beginning?
Lord Wallace of Tankerness: Of course, it has been Ministers who have asserted PII, and I think that is what we expect the Minister to do: to give consideration to whether that would be appropriate in this particular case before considering an application for closed material procedures.
and national security counts for the overwhelming majority of relevant material, why go through the PII exercise before applying to the court for a declaration that closed material procedure can be used? That may be the kind of case that the noble Baroness, Lady Manningham-Buller, was talking about. As I have indicated, the Government’s proceedings specifically include a duty to consider it. However, Mr David Anderson QC in his evidence to the Joint Committee on Human Rights said that the termination could be made without conducting a whole PII. He said that,
“if the exercise is plainly going to be futile, I do not think legislation should require it to be performed”.
Lord Wallace of Tankerness: The noble and learned Lord, Lord Woolf, talked about trying to square the circle. By the time I come to the end of my remarks, I will perhaps suggest that the circle is not as far from being squared as may appear from some of the comments that have been made. The noble Lord, Lord Pannick, is a member of the Constitution Committee of your Lordships’ House, and its report did not go so far as to recommend that the Bill require PII to be exhausted before a CMP declaration is sought from the court. The report stated:
Therefore, the idea that we should exhaust PII beforehand has some practical difficulties. Amendment 47 of my noble friend Lord Thomas of Gresford may try and avoid that, but I am not sure that it would because it still appears to require an exhaustive process. My noble friend referred to the Guantanamo civil damages claims, where there were 250,000 potentially relevant documents for which PII might have to be considered. We are talking about having to go through all that.
I come on to the two stages of the closed material procedures, an important part of what I wish to say to your Lordships. There is what might be described as the gateway application—basically covered by Clause 7—and then there is detailed consideration of the documents once a CMP has been granted. Of course, on the detailed consideration of the documents, not quite the same test would apply, and we would have to go through all these documents again to see if a CMP should apply to each one individually. That could take considerable time and cause delay to the claimant, which is of quite considerable importance as well.
My noble friend Lady Berridge asked if the court should have gone through PII in the Al Rawi case because it could have resulted in a balancing act and things might have gone into open court. The point is that if the court had overturned the PII certificates on
Wiley grounds, the result would not necessarily have been disclosure of the material in open court, if disclosure would have damaged national security. The Government would have to seek to have the material removed from the litigation by making concessions or by seeking to settle. Indeed, that is one of the issues that we are trying to address with these proposals.
Some have suggested that under public interest immunity more material would be heard in open court than in a CMP. We do not believe this to be the case. Nothing heard in open court now should be heard in secret in consequence of these provisions. In practice—and for the very reason I have just given to my noble friend Lady Berridge—claimants will have access to the same level of information, because, where the court declares that the case is one where closed material procedure may be used, this does not mean that all material in those proceedings is automatically heard in closed proceedings. As with PII, there will be a painstaking exercise to ensure that as much of the evidence as possible is heard in open court.
This painstaking exercise has sometimes been overlooked. The noble and learned Lord, Lord Falconer, said that the Clause 6(3) test is passed and the door closes. That is not the case. The Clause 6(3) test is only that the CMP may be used in principle, and there is then a detailed assessment at stage 2 with regard to the provisions that are available, with the rules of court to be promulgated under Clause 7. I hope this addresses some concerns. The noble Lord, Lord Pannick, and my noble friend Lady Berridge made a point about the second stage of the process. The decision to go into closed material procedures is an in-principle decision, and there is no equivalent with regards to PII. That is stage 1.
In stage 2, in Clause 7, the court considers what might then be done with the material. It may be on a document-by-document basis. It could lead to redaction, and it could lead to gisting. It would be quite possible for every piece of material relevant to proceedings to be partially disclosed, redacted or gisted, If this could be done without damaging national security. I hope that that gives reassurance that there is a stage which, although not exactly the same, is a very similar test and process to PII. As we said in the Green Paper, we wish to be in open court as much as possible, and we believe that that can be facilitated by going through a stage 2 process.
My noble friend Lord Faulks asked about the points made by our noble and learned friend Lord Mackay of Clashfern on Second Reading with regard to Clause 7(3). The importance of Clause 7(3) is that it follows Clause 7(2)—obviously—and covers circumstances where if the court refuses permission for particular evidence to be heard in closed proceedings, and the Government elect not to disclose that material, the court has the power to direct that that material should not be relied on and should be excluded from the proceedings, or to give directions that concessions must be made. These are very important safeguards.
the material out completely or, if it helps them, to say, “Let’s have it in secret without the other side seeing it”. The Government can make that choice and nothing in the Bill would make it wrongful for them to make their choice by reference to what would give them the best prospect in litigation.
Lord Wallace of Tankerness: Certainly I am aware of that concern. It was perfectly legitimate for the noble and learned Lord to raise it, because it motivated the amendments tabled by my noble friends Lord Thomas and Lord Hodgson.
For the sake of completeness, I will indicate that it is important to remember that the court will need to be satisfied that disclosure of that material would damage the interests of national security, and that any obligations under Article 6 of the European Convention on Human Rights are met. Of course the court will have the assistance of special advocates representing the interests of excluded parties in testing whether these conditions are met. I endorse what was said by the noble and learned Lord, Lord Woolf, and my noble friend Lord Carlile, that perhaps special advocates have sometimes undersold themselves. I think it was in the case of M v Home Office that the noble and learned Lord, Lord Woolf, indicated that he had been very impressed by what the special advocates had done in challenging evidence.
I move on to the point about the Secretary of State and the important amendment spoken to by my noble friend Lord Hodgson. It raises an important issue that the Constitution Committee flagged up with very seductive arguments that we should consider. I am aware that there is concern about the potential unfairness of the Secretary of State being the only party to proceedings who can make an application. However, I will explain to the Committee that we heard that the motivation behind the amendment was concern that there would be too much control in the hands of the Government, and that were they to apply for PII to exclude material from the case, the other party would not be able to request a CMP so that the information would be put before a court. As I indicated, this matter was picked up by the Constitution Committee.
There is an important constitutional point here. Under our system of government, the Executive are the guardian of the United Kingdom’s national security interests. The 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 when the sole criterion is that of national security. There would have been stronger arguments if some of the other grounds that were floated in the Green Paper had been included—but we confined this purely to national security. We believe that the courts can play an essential role.
Lord Faulks: I entirely accept what the noble and learned Lord said about the relative roles of the judge and the Secretary of State. Perhaps this might give him an opportunity to deal with the response in the
Second Reading debate. It was suggested in the algorithm that the judge could decide what was in the interests of national security.
Lord Wallace of Tankerness: It was helpful of my noble friend to raise that. Clause 6(2) states that there are two ways in which a judge must be satisfied before he must grant an application for closed material proceedings. The first is that the party to the proceedings would be required to disclose material to another person in the course of the proceedings. That would normally come under Rule 31 of the Civil Procedure Rules. Again, I say to the noble Lord, Lord Pannick, that Clause 6(3)(a)(i) is there because there could be circumstances in which a judge could take the view that you would not be required to disclose something because you could assert public interest immunity, and that argument would succeed. Apart from the fact that there might be public interest immunity, if disclosure would be required under normal rules in civil proceedings, that would be the first test that the judge has to apply.
The second test is that it would be damaging to the interests of national security. It was said by a number of noble Lords, including my noble friend Lord Lester of Herne Hill, that the courts over many years have been very respectful of the government position on that. The Bill makes it very clear that the application would be one in which special advocates would be involved. They could assert to the judge that the case had nothing to do with national security and that the Government were trying to cover up some embarrassment. That is why the second test is there. The two conditions must be fulfilled: first, there must be a requirement to disclose; and, secondly, disclosure would be damaging to the interests of national security.
In practical terms, the Secretary of State would be in the best position to judge the scope and nature of national security-sensitive material. Despite the fact that the absence of a CMP might be detrimental to their interests, other parties will not even be aware that relevant national security information exists, and would not be able fully to judge what damage there might be if the information were released. It is therefore clear that the argument for the Secretary of State making the application is a strong one. Nevertheless, it can remain open to a third party to approach the Secretary of State and request an application for a CMP should they require one. One example of this might be if the police were party to proceedings involving national security-sensitive material, for example in relation to counterterrorism. The Secretary of State would assess the risk of damage and make an application for a CMP on their behalf.
If the public interest were more widely drawn than national security, there would be a stronger case for other parties to the proceedings to be able to apply for a CMP. However, as my noble friends Lord Thomas of Gresford and Lady Berridge made clear—I was asked about this by the noble and learned Lord, Lord Falconer—one concern is that the Government might want to have their cake and eat it, and might choose between claiming PII and applying for a closed material procedure opportunistically—opting for PII to exclude
material and cover up wrongdoing and CMP where closed material would help their case. We do not believe that this is a realistic concern.
I assure noble Lords that the intention behind the CMP proposals is precisely that allegations against the Government are fully investigated and scrutinised by the courts. The intention is that all relevant material, helpful or unhelpful, will be put before the courts. Although it is in the first instance for the Secretary of State to instigate the CMP application, or to make a claim for PII, the power to order CMP or accept a PII certificate will rest with the judge, who will be alert to any unfairness to the non-government party, and with the CMP would have the case-management powers under Clause 7 to ensure that individual pieces of evidence are treated fairly through requiring disclosure or exclusion. It is inconceivable that a judge assessing the PII claim would conclude that the public interest in excluding material outweighed the public interest in its disclosure if the Government were cynically seeking to use PII to exclude material that undermined their case or assisted another party to the proceedings, especially where the court would know that the possibility existed of making an application for the use of a closed material procedure.
This is where the point made by the noble and learned Lord, Lord Woolf, is relevant. He said that these matters could be looked at in the round and should not be put in silos. That is what we anticipate happening. The concern is perfectly legitimate and I fully understand it. However, we do not believe in reality that that would happen, and that the judge who was asked to grant a closed material proceeding or a public interest immunity certificate would allow such cynical ploys to succeed.
Lord Thomas of Gresford: That sounds like one of the great lies. “I am from the Government and I am here to help you”. The noble and learned Lord is saying that a Minister faced with a claim against him is inevitably going to be like a judge and not weigh one thing against another. If he can win his case by going for PII instead of closed material procedures, which I suggest he can, why would he not choose to go for PII? That is why I say my suspicions would be aroused if the Minister who had that choice went for PII, knowing that excluded material could not form part of the judgment. That is the problem. For the past five minutes the noble and learned Lord has been emphasising that the judge has this decision; he has this discretion; he looks at this material; he makes up his mind. The Bill is a straitjacket whereby the Minister controls which procedures are to be followed as well as what material is to be disclosed. So I hope the noble and learned Lord will reflect on what he has been saying.
Lord Wallace of Tankerness: My Lords, I do not accept that it is a straitjacket. I have sought to indicate that at the second stage proceedings each individual piece of material will be looked at. If disclosure subject to redaction is needed, that is what will be ordered. If gisting is needed, the power will be there for the court
to do that. I do not believe there is terribly much between anyone as to what we seek to achieve. I have made it clear that it is not the intention of the Government that uncomfortable, unhelpful evidence should be held back. Indeed, I have just said that it is our intention that all relevant material should be before the court. If your Lordships do not think that the wording achieves that, it would be only proper, given the quality of the debate we have had, for me to reflect on the points that have been made. We are all grappling with how we get the procedure that achieves an objective which is widely shared.
I hope noble Lords will also consider the points that I have made. Some of the comments made suggested that it had not been fully understood what the nature and extent of the second stage procedure would be with regard to individual documentation and evidence once the gateway had been opened and the principle of closed material proceedings had been accepted. I hope noble Lords will reflect that that procedure is available. I am more than willing to engage with the Opposition, with my noble friends and with Cross-Benchers to see if we can address the objective in a way which does not defeat the object of this but ensures that in cases where justice and fairness demand that material should be made available, material which would be damaging to national security were it to go into the public domain, that that can be achieved. I have no doubt that when I invite my noble friend to withdraw his amendment he will indicate that we will come back to it at the Report stage. I sincerely hope that over the summer months we can have some consideration of it and perhaps the agnostics might become believers.
Lord Lester of Herne Hill: Just to be clear, is the Minister saying that he accepts that the judge at the first stage should have complete discretion in deciding on case management and whether it should be dealt with first by PII or not? If not, why is that such a bad idea?
Lord Wallace of Tankerness: My Lords, that is not what I said. I did say, however, that the judge at the first stage has to be satisfied that two tests are met before he even opens the gateway to closed material proceedings. There has perhaps been some misunderstanding that when you pass through the gateway, everything suddenly becomes subject to closed material proceedings. That is not the case. It is at that stage that individual pieces of evidence are looked at. That is a materially different position from the one which has sometimes been suggested that the gateway is the be-all and end-all and once you go through the gateway the doors and the shutters came down. That is not what is proposed but obviously if noble Lords do not believe that is properly reflected in the drafting, I am more than happy to try to find a way in which we can proceed.
Lord Falconer of Thoroton: My Lords, I am grateful for that constructive indication. I would co-operate fully in trying to draft an answer that reflects what the noble and learned Lord is saying. I understand him to be saying that if a PII application were made, the judge would be able to say, “You cannot keep all this
secret. You should deal with it in a CMP”. That is what I understand the noble and learned Lord to be saying. I think he is nodding, although it may be an involuntary twitch. Assuming that he is nodding, there seems to me to be a problem in the drafting because it gives the court the power to make a CMP order only where there is an application by the Secretary of State. I would be more than happy if the solution reached was to apply to the judge who has the power to decide, balancing all the factors, whether this should be PII, complete disclosure or a CMP. That is not what the Bill says now but that is broadly what I understand the noble Lord, Lord Thomas, to be arguing for—the noble Lord, Lord Lester, is nodding—and the noble and learned Lord, Lord Wallace, to be saying. I am more than happy to sit down with everybody and draft that but that is not the current position.
Lord Thomas of Gresford: Perhaps I may add that my Amendment 45, which we have not come to, is designed to replace the word “must” in Clause 6(2) with “may”—in other words, a discretion for the judge to decide whether to make a declaration based on the criteria that he must apply.
Lord Wallace of Tankerness: My Lords, again we are falling into the trap of jumping to stage 2 and thinking that the application immediately rules everything as closed material, which is not the case. If there is a body of evidence which can be presented to the judge showing that interests of national security are absolutely pertinent to the determination of this case, it is “must”; there must be closed material proceedings. But, as I have indicated, that does not mean that every piece of evidence is to be excluded and is not to be disclosed. If the Secretary of State cynically applies for PII when a CMP is available, the judge may not be disposed to grant PII. What I understood from the noble and learned Lord, Lord Woolf, is that the reality, particularly if you have special advocates arguing the case, is that unless the Secretary of State seeks a CMP for this kind of material he will have less of a chance of getting his PII accepted. Even if a CMP application was not made by the Secretary of State and a request was made to him for a CMP which he refused, that in itself would be judicially reviewable. If that refusal was seen to be unfounded and irrational, or the only rationality was to hide malfeasance, then clearly that would weigh heavily with the Secretary of State. I have indicated what we intend to achieve by this. I repeat: the intention is that all relevant material, helpful or unhelpful, will be before the courts. I think we can have a worthwhile discussion as to how that could be brought about.
Lord Faulks: My Lords, this has been a lengthy but helpful debate. I am grateful to all noble Lords for taking part and for the very constructive comments that the noble and learned Lord, Lord Wallace, has made. It seems to me that we are moving, if not dancing as the noble and learned Lord would have it, towards some sort of consensus here. The question is whether we have found the right route to CMPs—an option which should be exercised only in the last resort. As the noble and learned Lord, Lord Woolf, said, it is certainly better than nothing. It is hoped that
there will not be many cases that need CMPs. Like the noble Lord, Lord Lester, I do not wish to be competitive about which amendment is preferable. The amendments are intended to probe the somewhat complex provisions. There has been a great deal of clarification from the noble and learned Lord, Lord Wallace, for which I am grateful. It is still not entirely clear to me how some of the various parts of the procedure are going to work with each other. I think it is accepted that there is room for some improvement in that regard.
The noble and learned Lord, Lord Falconer, asked for the evidence that PII is actually working. Apart from the anecdotal evidence and the absence of appeals, there is some substantial evidence from the special advocates themselves, who say that not only is it working but it is enough, and they do not support the possibility of CMPs at all.
I accept that there is always a danger in putting in statutory form something that is in common law; it could perhaps remove the possibility of growth. None the less, PII is a mature form of the common law and the definition of PII contains a great many checks and balances, as this statutory interpretation has set out. Taking Amendments 39 and 40 together, it looks a rather complex procedure, formulaic or even a straitjacket. In practice, all it is doing is summarising what is well established, and there will indeed be a great deal of flexibility even if one were to follow the terms of the amendment.
Flexibility is clearly desirable, but I would reiterate that it is most important—as the Government acknowledge in Clause 6(5)—that the question of PII should be properly considered, and potentially judicially reviewable. This amendment puts in the Bill an obligation to go through the process before going to CMPs. I suggest that, with modifications, that represents a positive safeguard on what I hope will be a rarely resorted to but undoubtedly necessary procedure. In the light of what has helpfully been said, I am happy to withdraw the amendment.
Baroness Stowell of Beeston: My Lords, before I resume the House, I take this opportunity to offer some assistance to noble Lords who will be participating in the next debate in the name of my noble friend Lord Astor. As is obvious from the list of speakers, there is great interest in this debate, which has led us to have to limit speaking times to three minutes, with the exception of my noble friend Lord Astor and my noble friend the Minister. I know that noble Lords are familiar with the way that the clock operates and will want to work with my noble friend the Whip on duty tonight to ensure that we finish the debate in the hour to which it is limited.
To ask Her Majesty’s Government what progress they have made in reviewing the economic viability, value for money and benefit-cost ratio of the High Speed 2 London to Birmingham, and London to Leeds and Manchester, lines.
Viscount Astor: My Lords, HS2 is a controversial proposal designed to operate a high-speed rail link between London and Birmingham, and eventually onwards to Leeds and Manchester. It is controversial for a number of reasons.
The first is the route: a new line cutting through some of the most unspoilt countryside in England, where there are already two existing lines, one operated by Virgin Trains and the other by Chiltern Railways. Either line could be upgraded or the new line could follow one of the existing motorway routes—an option suggested by the Transport Select Committee—which would cause minimal disruption compared with HS2.
However, I want to concentrate on cost. The question is whether the cost of £33 billion is worth the benefits that might accrue. We all want better services from north to south, but I challenge the assumption that HS2 is the answer. The Government’s case rests on the assumption that rail travel is destined to grow at the rate projected by the Department for Transport, but one has to say that the department’s record in projecting future passenger numbers is not good.
In the words of the National Audit Office, the department used “hugely optimistic assumptions” about passenger numbers on HS1. Passenger numbers from 2007 to 2011 were only one-third of the original 1995 forecast and two-thirds of the 1998 forecast. The NAO went on to say that the costs had exceeded the savings from shorter journey times, and the Public Accounts Committee said that costs would eventually rise to £10 billion.
I am sure that the Minister will quote the support of the All-Party Parliamentary Group for High Speed Rail. However, it is a group set up specifically to support high-speed rail, so I would remind him of another report by the Public Accounts Committee, which came to the opposite conclusion and recommended:
The department claims to have improved its forecasting, with better computer modelling and more computer power, but of course wrong assumptions in produces wrong statistics out, whatever the rise in computer power. What it has failed to take into account is that the projected benefits are largely dependent on business use, and business use is changing.
business efficiency as carriages are now linked to the internet and provide a good working environment. To assume that all time spent on trains is wasted is simply not credible. The department’s own report
Productive Use of Rail Travel Time and the Valuation of Travel Time Savings for Rail Business Travellers
asserts that a reduction of 10 minutes in journey time increases the amount of working time by only 0.75 of a minute.
HS2 does not deliver a step change in journey times. It connects to the centre of Birmingham but there is no onward connectivity and a change is required; nor does it connect to Heathrow, as promised in the Conservative Party manifesto. This connection is offered as a possibility, some time after phase 2, in 2033. What is more, a route via Heathrow would cause the least damage to the Chilterns, crossing through its narrowest part. HS2 will cut the journey time from London to the centre of Birmingham but only by barely half an hour, and much less if you want to make an onward connection.
By the Government’s own admission, the benefit-cost ratio for phase 1 declined from 2.4 in March 2010 to 1.4 in January 2012, and to just 1.2 in April 2012. However, even this overestimates the true position, as the DfT also admits that its assumptions are based on out-of-date gross domestic product figures. If one takes into account the latest GDP forecast and uses the later rail demand model, the benefit-cost ratio dips below 1—well below the Government’s own ratio for acceptable capital expenditure benefits.
In an earlier statement to the Transport Select Committee, the then Transport Secretary Philip Hammond agreed that below 1.5 he would need to seriously review the viability of the project. A full Y route to Manchester and Leeds produces only a modest increase to 1.4 in the benefit-cost ratio. It seems to me that the department is going to have to review the project.
We know that peak-time services from Euston in the evenings are only 56% full and that Manchester services are 45% full. We know that total journeys per person by all transport modes are declining, not increasing, so to justify the projected increases by 2032 there would have to be a large shift from road to rail. Looking ahead to 2032, we know that most cars will be electric and therefore very fuel-efficient. The Government accept that HS2 does not reduce CO2 emissions. There is no evidence that HS2 is going to cut road usage. By 2032, electric cars could easily be driving themselves on the main routes, as has already been tested in America.
What will increase in the future, as I think everybody agrees, is commuter use of the rail network, but HS2 does not solve that issue. I believe that the answer is an upgrade of the existing line, more frequent services, more carriages and longer platforms—which could all be achieved at a fraction of the cost for the same result.
The recent growth following the upgrade of the west coast main line led to huge improvements in service frequencies and journey times and shows what can be done by improvements to existing services. Upgrading is estimated to cost about £2 billion and the department says that it produces a benefit-cost ratio of over 5.0. That is real value for money. This would cater for all the future demand predicted by the
department and provide the capacity much sooner so that any crowding problems were addressed much faster. It would also cause significantly less disruption to the existing network than what is proposed.
We are also told that 1 million jobs will be created, but the evidence to support this claim is questionable. Various comparisons are made concerning Europe and the TGV, but a close analysis of what has happened in Europe shows a very local movement in jobs and not necessarily a total increase in jobs in the wider area. Just 1,500 permanent jobs will be created by HS2, but the department admits that seven out of 10 jobs attributed to phase 1 will benefit London, not the regions. We could create a lot more jobs in the north by supporting industry there with direct investment, grants, help with bank finance and better local services.
We need to spend money upgrading our entire rail network. We need infrastructure spending that links the rail network to airports and then to city centres. Those in the north have been pressing for a northern hub that connects key northern cities by rail. East Anglia, for example, is desperate for better services and connections. The concern is that HS2 will inevitably drain funding away from the rest of the network and that desperately needed improvements will not get funding.
The commendable House of Commons Transport Committee report called for a proper transport strategy before HS2 phase 1 and phase 2 proceed. It also called for an explanation of how HS2 fits within an overall transport strategy and for the summary and assumptions of the financial case so they can be properly examined.
We need a rail strategy that will bring real benefits to northern businesses rather than just marginally faster journey times to London. The planned HS2 does not connect to HS1, which is not much help to passengers arriving from Europe. They will still have to get the Tube or the bus across London.
HS2 fails on the four key principles that even HS1 managed to pass: it does not follow existing noisy transport corridors; it does not follow the shortest route through areas of outstanding natural beauty; it is not proposed to be tunnelled through the most sensitive areas; and it does not provide benefits for local communities affected by the route or by access to the service.
I have done a quick canter through this about as fast as a train will go, because time is limited. I have given notice to the Minister of the questions I have asked this evening. I am sure he will be able to address the issues of cost and benefit and try to prove the Government’s case for HS2.
Lord Adonis: My Lords, the international rule of high-speed rail is that everyone wants the stations but no one wants the line. England is no exception, and the noble Viscount, Lord Astor, has been honest enough to admit that he certainly does not want the line anywhere near him. He wrote in the Spectator recently:
I was not biased as the Secretary of State for Transport. The previous Government proposed HS2, and the present Government are carrying it through because it is the best decision for the infrastructure of the country. This is for two reasons. First, it is false to suggest that there is a choice between building HS2 or saving billions of pounds by not doing so. I fear that that is wishful thinking. The real choice is whether to build HS2, to treble inter-city capacity between London, Birmingham, Manchester, Sheffield and Leeds, or instead to carry out successive patch-and-mend upgrades of the four existing main lines from London to the north, ultimately spending more money for less capacity. The cost-benefit analyses show a strong business case for HS2. But it is equally important to consider the alternative. What would need to happen if there were no HS2? On this, Network Rail's assessment is clear:
“Even modest demand growth causes problems and significant rail enhancement is needed … train lengthening beyond 12-cars would have major implications for terminal stations and signalling systems. Further incremental enhancements at key locations may provide some capacity but not enough to be sustainable for the long-term and not where it is most needed”.
There is no need to gaze into the crystal ball. It is only four years since the last upgrade of the west coast main line referred to by the noble Viscount was completed. It cost £10 billion, and that £10 billion did not price the cost of a decade of chronic disruption to passengers as open heart surgery was performed on a Victorian railway operating at capacity.
There is a second compelling argument for HS2. By using 21st century technology, rather than trying to squeeze yet more out of what by the 2030s will be a 200 year-old railway, you get a transformation of capacity, speed, reliability and passenger service all in one. That is why most advanced European and Asian countries, with an economic and physical geography similar to ours, have already built high-speed lines to link their major cities. The claim that London to Birmingham, Manchester and Glasgow are distances too short for high-speed rail is quite unfounded. The world's most successful high-speed lines are between Paris and Lyons, Frankfurt and Hamburg, Tokyo and Osaka, Rome and Milan, distances comparable to those between Britain's major conurbations. Britain is right to be following suit.
Lord Bradshaw: The noble Lord, Lord Adonis, will remember when I came over with his noble friend, Lord Berkeley, to contest the use of COBA, the system for cost-benefit analysis which is used. This was invented in 1960—at least it entered transport in 1960—and it was used to create a case for the Treasury about the building of the Victoria line. It is based on the theory that one can add up all the small time savings of everybody, multiply them, and then end up with a big sum of money. However, it is not real money, it is imaginary money. I ask the Minister to go back to the department again and challenge the use of COBA, because it is wrong. It is a great industry among the consultants and the department, but it does not lay a single piece of track and it does not properly justify itself.
There is a very strong case that the noble Lord, Lord Adonis, has just referred to, for providing more capacity. However, in the figures he has quoted, the noble Viscount has ignored the fact that the freight industry will double or treble its demand in the timescale of the building of HS2. In so doing, it will wipe out any extra capacity, together with the better train services which will be available at most of the intermediate stations on the west coast main line. I was talking to a newly elected MP from Kent. I asked him how many complaints he received about the HS1 which runs through his constituency, and he said, “None”. He said that people have accepted it, that it is quiet and efficient, and that it does not have any of the things that clutter up motorways like lights and places for people to rest. The noble Viscount, Lord Astor, should take some of his friends to Kent and see the actual effect, because many people are talking up the effects in the hope of compensation.
Lastly, there are huge cost reductions available for HS2. I believe that it should run from Old Oak Common through to HS1 and probably connect at Ebbsfleet. Old Oak Common should be developed in a way in which it becomes the main terminus. We should try not to inflict more people on Euston, which is already full.
Baroness Seccombe: My Lords, I am grateful to my noble friend Lord Astor for bringing this highly important, and for some of us, hypersensitive matter before the House this evening. First, I wish to declare my interest as the President of the Kenilworth and Southam Conservative Association. The constituency lies in the heart of magnificent rolling country of fields, trees and hedges. It comprises glorious productive farming land where at present the residents live with the constant threat of monstrous wind turbines. Now a blight has been added to their fears, with the further threat of high-speed trains ripping through their homes and farms.
I know that many of your Lordships have studied the project in detail. I am not in that category but, as a commuter who has heard innumerable local views, I feel I should express my position. If the fearsome amount of £33 billion has been identified, it should be used for the maximum benefit of us all, not for the few rich northern commuters who would save minutes from a journey at the expense of the long-suffering travelling public and the whole network.
Turning to the chosen route of HS2 Ltd, I am saddened that the company has refused to meet community forums. It has also refused to allow bilateral meetings at which specific counterproposals would have been suggested, which denies local people the chance to give their views. I can imagine that when HS2 Ltd finalises the route in November, there will be considerable irritation.
Lastly, I turn to blight. The planned consultation on a long-term compensation scheme is yet to begin, despite being expected in the spring. The delay is obviously causing anguish. The exceptional hardship scheme allows compensation only when your reason
for sale is included on the Government’s list. That is not acceptable so I hope that great care is being taken to produce a system that people can live with. If we have to live with this scheme, I plead that someone who needs to downsize for income or medical reasons, for instance, but is able to sell only at a discount price, should be listened to with understanding and compassion.
Altogether, this is a bad scheme and a huge waste of money which should be dropped. I know that the Minister is fair and sensible and will take our message to his colleagues. I look forward to his reply.
Lord Stevenson of Balmacara: My Lords, I congratulate the noble Viscount, Lord Astor, on securing this all-too-short debate this evening. I can only imagine the frosty reception around the family dinner table when he announced that this debate was taking place tonight, particularly after the revelations in “Mrs Cameron’s Diary” in this morning’s Guardian.
I declare an interest in that my family and I live in Little Missenden, which is only a few hundred metres from the proposed line. It runs through the very heart of the AONB designed to protect the Chilterns. It may be said that, as a result of my living so close, my comments should be discounted. However, it is the very fact that the line runs so close to our village that made me take a close interest in the woeful economic case and the very sketchy consultations carried out to date. I put on record that had there been an overwhelming case in the national interest for proceeding with the line, we would have accepted the situation. However, this is the wrong solution to the perceived lack of future passenger rail capacity, it is in the wrong place, and the project is unaffordable now and will be in the immediate future.
In his excellent speech, the noble Viscount, Lord Astor, gave a withering assessment of the economic viability, value for money and benefit-to-cost ratio of the High Speed 2 line. I agree completely with his comments and conclusions. To strengthen the point made at the end of his speech, I suggest not only that the Major Projects Authority—the MPA—should be asked to report on the HS2 project and publish its results, but that the OBR should take a look at the overall economic impact of the scheme.
Despite my antipathy to the present scheme, I am not against investing in our rail network. I could support a high-speed rail network, but only if it had the following characteristics. The whole high-speed network should be planned coherently from the start and include east and west coast links to Scotland, Wales and the south-west. Greater priority should be given to the need to switch passenger traffic from air to rail, and to linking directly with HS1 and the Channel Tunnel. This would imply routing the line through Heathrow and considering a second hub at Stratford, as recently suggested by the Labour Party.
Serious attempts need to be made to limit the damage done by a new rail line by respecting our heritage and countryside, whether designated or not, by sticking to existing major transport corridors and being prepared to spend what is necessary to provide proper twin tunnels. For example, in the Chilterns, it is
an outrage that the current plans do not provide for such a deep tunnel. I urge Ministers to look very carefully at the proposals put forward by groups such as the Conserve the Chilterns campaign group. The Government need to come up with a proper compensation package that reflects the real costs borne now and in the future by those with property blighted by the plans and whose lives will be adversely affected by the construction and operational phases for 20 or more years.
Lord Bates: My Lords, in my short contribution I shall try to agree with my noble friend Lord Astor and the noble Lord, Lord Adonis, about the benefits of HS2. I speak from the perspective of the north-east of England. In doing so, I declare an interest as a weekly traveller on the east coast main line to Newcastle. The journey of three hours and six minutes is the most pleasurable part of my week and probably the most productive. The idea of people cutting it short does not exactly fill me with joy. If they wanted to extend it, I would probably be quite happy and even more productive in that time. However, I accept that I am unusual in that.
My question is: what will the way in which HS2 has been phased do for disparities between the north and south? The south-east has benefited enormously from significant infrastructure investment, starting with the Channel Tunnel, which received £11 billion in current money. Then there was HS1 and the Olympics, which brought £10 billion into the south-east. There is talk of a potential third runway at Heathrow. Crossrail received around £15 billion. Significant infrastructure investment is taking place in the south-east. If HS2 is added to it in its current proposed phasing, it will simply draw more and more business to the south-east of England and cause overheating so that Birmingham becomes simply part of the commuter belt for Greater London. That holds some dangers.
I propose that we solve the problem by starting the high-speed rail network in the north and working south. There are some strategic benefits to so doing. As a northerner, I am also slightly suspicious of 20-year infrastructure contracts. Ten years in, when the first bit has been built as far as Birmingham, will we find that the money has run out? High Speed 2 Ltd will say, “We’re terribly sorry”, and we will not see it completed. If people think that is a bit far fetched, we live with the unmotorised part of the A1 to this day. Starting in the north and moving to Birmingham would allow people time to see how Crossrail is working out, sort out what they will do with Heathrow Airport and assess whether it is needed.
Lord Gardiner of Kimble: My Lords, I thank my noble friend Lord Astor for initiating this debate. I declare my interest as a board member of the Countryside Alliance, which has expressed concerns about HS2.
HS2 is not without controversy. One of the most contentious elements is the fact that the line will run through the heart of the Chilterns, a designated area of outstanding natural beauty. I know the Chilterns
and the route north of Aylesbury well. I have a profound respect for the communities there and know many people who will be directly affected. If we are to desecrate some of our finest countryside and place such a heavy and lasting burden on communities, we need to be clear that it is in the national interest.
Under this Government, all infrastructure projects are to include the value of natural capital, as set out in the natural environment White Paper. This approach is commendable. It is illogical, therefore, that the current business case for HS2 does not include a proper account of natural capital. The Transport Select Committee’s recommendation that the revised business plan for HS2 should take account of this is entirely in keeping with the Government’s overall approach.
The justification for HS2 has changed since its inception. First, it was championed as green but that claim is now discredited as it will not lead to any significant reduction in emissions. Then there was speed, but HS2 will cut journey times from London to outside Birmingham by barely 20 minutes. On capacity, many experts say that future commuter demand can be fulfilled by upgrading existing lines. Many groups have pointed out that predicted demand for HS2 is extremely high. Now we hear that addressing the north/south divide is used as validation. However, this is far from certain and many people fear that HS2 could funnel resources and growth towards London and the south-east.
What strikes me most is the lack of consensus around this project. If we are to spend £33 billion of taxpayers’ money on it, does there not need to be more certainty and transparency? The claim is that HS2 will offer genuine value for money, foster growth, improve the transport network and be an investment that benefits the whole nation rather than the few. In its current form, HS2 is a long way off that.
Baroness Scott of Needham Market: My Lords, this is the second time this week that I have found myself engaged in the parliamentary equivalent of speed dating—but here we go. High Speed 2 is not about shaving a few moments off the journey time between Birmingham and London. To really appreciate its true economic value, it has to be seen in the context of a national plan with links to both local schemes and European networks. Despite a highly disruptive £10 billion upgrade, the west coast main line has little room for additional trains while demand on the route has grown over 50% in the last decade and is forecast to keep growing. The challenge of operating long-distance commuter and freight services on the same line is almost insurmountable without further expensive and disruptive work.
Capacity released by HS2 will improve services to many West Midlands towns and into Wales. The east-west rail link for which I have campaigned for 15 years could become a reality. Phase 2 could relieve pressure on the east coast main line and avoid work, for example, on the Welwyn viaduct. With the amount of freight coming into UK ports increasing at 6% per annum, extra rail capacity is needed to prevent more HGVs on our roads. HS2 can be co-ordinated with local transport
schemes and housing growth—for example, the new HSR station at Birmingham Moor Street as part of a local regeneration scheme, or the new station at London Old Oak Common providing a link into the City and east London. Experience from the Jubilee line extension shows that these benefits have traditionally been underestimated in conventional BCR analysis.
There is a growing network of European cities connected by high-speed rail, from which the UK outside London and the south-east is currently excluded. This is despite the growing evidence that it is successful at reducing journeys by air. High-speed rail can form an important part of our aviation policy in other ways. For example, Heathrow should be linked to places outside London via high-speed rail. Accessibility to Manchester in phase 2 could make a huge difference to its viability. Indeed, under phase 1, Birmingham Airport will be closer in time to London than will Stansted. The Government need better ways of capturing these benefits and of quantifying the cost of inaction. Applying expensive and disruptive sticking plasters to the west coast main line is not a viable option. We need to create a coherent vision for transport which extends 30 years into the future, as our European neighbours have done. Only then will we have a transport system that will deliver a dynamic economy. Everyone says we need to invest in infrastructure for growth. Let us not talk ourselves out of delivering it.
Lord Cormack: My Lords, like the noble Baroness, this is the second high-speed debate this week in which I have taken part. I am delighted to be able to support my noble friend Lord Astor, who introduced the debate with a powerful, cogent speech, the figures carefully marshalled. For all the eloquence of the noble Lord, Lord Adonis, whom I admire very much indeed, I do not think that he adequately refuted the points made and the figures advanced by my noble friend.
I approach this from a slightly different point of view. The interest that I have to declare is a passionate love of the English countryside—the British countryside, too. Nearly 35 years ago, I wrote a book called Heritage in Danger, in which I pointed to some of the dangers to our very finite countryside. This is not a great, enormous country in geographical terms like France or Germany but one of finite beauty and size. The march of the wind farms and the driving of this link through some of the most glorious countryside in England would remove for ever something that should be imperishable and is of absolutely priceless worth. If you are going to do that, you have to demonstrate that there really is a case for it. I do not think that that has been done.
I have much sympathy with the points made by my noble friend Lord Bates in his speech. I agree with him about the work that one could do on trains. If there is a case for a high-speed rail link of this sort, then start in the north. We are far too London-centric. If we have got this money to spend—we have not; we are always being reminded of the economic stringencies of the time—then let us go back to Beeching and reinstate some of the lines that were so unnecessarily
taken up. Communities were deprived of vital links. That would be a better way of reviving the economic fortunes of many parts of this country. Give Lincoln, where I live now, more than one direct train a day from London. Bring to the people a system that really benefits the people.
Many have cast doubt on this scheme and I quote but two. My former colleague Archie Norman, who sat for some few years in the other place and who is the chairman of one of the great companies of this country, believes that the economic case has not been made. Andrew Tyrie—he has been much in the news recently, is to chair this very important committee and has a real knowledge of economic affairs—questions the economic viability. The case has not been made. If we have money to plan for spending money of this sort over the next 20 years, there are far more deserving cases that can bring far more benefit to far more people and preserve our glorious countryside in the process.
Lord Scott of Foscote: My Lords, I will say a word or two in the gap in support of all those who have criticised this HS2 train proposal. I draw attention to the report produced by Mott MacDonald’s consortium, commissioned by and on behalf of the Department for Transport, investigating the economic consequences of the proposed train. In particular, the consortium’s report deals with the supposed economic benefits of the time to be saved by businessmen travelling on the train from London to Birmingham or, later, from Birmingham onwards. I am sure that the Minister will be familiar with this report. He may not agree with me that the information I have about it—I have been unable so far to obtain a copy; it runs to 170 pages—indicates that the supposed economic benefits of the journey in the new train saving businessmen’s time will be at best trivial and at worst spurious. I suggest that this particular report deserves a bit of attention before the Government decide to commit themselves irrevocably to this scheme.
Lord Rosser: My Lords, I thank the noble Viscount, Lord Astor, for securing this debate. Our position is that we strongly support the transformation of our rail network to provide greater capacity and reduce journey times. This will require a combination of both new high-speed lines alongside upgrading the existing network through a programme of electrification and a new generation of high-speed intercity trains. We delivered Britain’s first new high-speed rail line, High Speed 1, and before the last election we set out plans for a second high-speed line, HS2, connecting London to Birmingham, Manchester, Sheffield and Leeds. The Government have backed this project and it should continue to be taken forward on a cross-party basis.
We have some concerns over the way the Government are planning to deliver the new high-speed line. We support creating a major transport hub near Heathrow which would improve connections between our largest airport, Crossrail and the Great Western main line. Since that would mean some change in alignment,
it might enable better protection of the Chilterns. If the Government are determined to reject this sensible alternative, we will accept their decision but will expect credible alternatives to be brought forward to address the issue.
We disagree with the Government’s decision to legislate only for the first phase of the high-speed rail line in this Parliament. By splitting the route between two pieces of legislation, the Government are risking national support for the scheme and raising unnecessary concerns about the cross-party commitment that exists to complete the entire Y-shaped route. We also believe that high-speed rail should be a service that is affordable for the population as a whole and not just certain sections of the community, as envisaged by the previous Secretary of State in evidence to the Commons Transport Select Committee in September last year.
All noble Lords who have spoken will want to hear from the Minister whether the Government’s position on High Speed 2 remains as set out in the Written Statement by the Secretary of State for Transport on 10 January 2012. I, too, would like the Minister to answer that question. I would also like the Minister to say whether any subsequent developments have significantly changed the figures to the extent of appreciably weakening the case contained in Command Paper 8247 on high-speed rail, presented to Parliament in January 2012, the Atkins paper of January 2012—the High Speed Rail Strategic Alternatives Study—and the two January 2012 HS2 Ltd/Department for Transport papers on the economic case for HS2.
Will the Minister also say, assuming that the Government’s position on HS2 has not changed since the Written Statement of January 2012, whether the Government’s main—but certainly not only—argument for HS2 is the saving in time for those travelling by rail between London, Birmingham, Manchester and Leeds, or whether it is the need to address the projected serious capacity problems arising from continuing significant projected growth in passenger demand on the west coast and east coast main lines between London and Birmingham, London and Manchester and London and Leeds as well as growth in freight traffic?
Earl Attlee: My Lords, I congratulate my noble friend Lord Astor for securing this debate on a very important subject. I also thank noble Lords for their typically well informed contributions. It is certainly not a matter of nimbyism. It is important and right to raise questions about a project as significant as HS2 and I am happy to try to address such questions this evening. Large scale infrastructure projects are not new or unusual. They have been going on for many years and they have been controversial. For instance, the Jubilee line extension was controversial at the time of its conception, but where would we be without it now?
In his opening speech, my noble friend questioned the benefits that we expect HS2 to deliver. I want to reassure him on this point. I believe passionately in a successful Britain, a country that can compete and thrive in a global economy. To achieve this we need infrastructure fit for the 21st century and beyond. We
cannot just make do and mend. Good transport equals good economics. One of the best ways to support British business, power up the recovery and put people back to work is to invest in, and modernise, our transport networks. HS2 will revolutionise travel in our country, transforming connectivity between London, the Midlands and the North, and, as the noble Lord, Lord Adonis, said, it is the best decision. It will provide a step change in the capacity of the rail network to accommodate the growing demand for long-distance travel, providing up to 18 trains an hour, each with up to 1,100 seats. Without it, our main north-south rail arteries will become increasingly disrupted and overcrowded, damaging both our economy and our way of life.
HS2 will slash journey times for passengers between our key cities and regions. It will be a truly national network benefiting the whole country. While the high-speed line itself runs to Birmingham, Manchester and Leeds, the new trains will be designed to continue onto the current network, providing direct services to destinations further afield, such as Liverpool, Newcastle and Glasgow. It will help rebalance the economic geography of the country, supporting thousands of jobs and unlocking growth and opportunity for generations to come. It will be a truly transformative project.
Some noble Lords have questioned whether a new high-speed network is the best way to provide the additional north-south capacity our country needs, suggesting instead a programme of enhancements to the existing network, but this would provide only a short-term answer to the demand challenges addressed by HS2, and even then, only at the cost of significant disruption to passengers on affected lines, all the while sacrificing the connectivity benefits high-speed rail will bring.
Several questions related to the approach taken to assessing the economic viability of the project. In January, when my right honourable friend the Secretary of State for Transport announced her decision on HS2, she set out the economic case underpinning this project and the department will shortly be publishing further updated economic analysis. However, the benefit-cost ratio analysis forms only one part of the decision-making process for this strategically important project. There are wider strategic considerations as well, which I outlined a moment ago. I will try hard to answer as many supplementary questions as I can and when I fail I will, of course, write.
The noble Lord, Lord Rosser, asked about the two hybrid Bills. He will know that each hybrid Bill requires a very considerable amount of work to determine what powers are needed. Several noble Lords, including my noble friend Lord Astor and the noble Lord, Lord Stevenson of Balmacara, claimed that there is no economic case for HS2. I beg to disagree. HS2 continues to have a good economic case. The Government have always been clear that as well as offering good value for money in itself, there are wider social and economic benefits associated with improving connectivity and supporting regeneration in our major cities.
London at the expense of the regions. The Government’s position has the support of businesses and their representative organisations across the country, which express their belief in the importance of improving our transport network, and specifically our intercity rail network, in order to enable higher economic productivity.
The noble Lord, Lord Stevenson, asked about the release of the Major Projects Authority report. The Cabinet Office has a policy of not releasing the reports for two years, but they will be released at the appropriate point. Noble Lords asked me about the DfT’s record in forecasting and modelling transport demand and they suggested that it is poor. The Department for Transport has significantly improved its passenger forecast modelling in recent years. As acknowledged by my noble friend Lord Astor, we have a better understanding of what drives passenger demand, better computer modelling and our approach to risk analysis has improved.
The position of HS1 and HS2 are very different. Eurostar was accessing a completely new market for intercapital rail travel in competition, it transpired, with a burgeoning short-haul deregulated aviation market. HS2 will relieve a seriously congested existing railway between the two largest conurbations in the country—a long-existing market where demand is well understood and predicted to grow. My noble friend Lord Bradshaw suggested that our appraisal is based on the over-inflated value put on business travellers’ time. The analysis underpinning HS2 has been based on the Department for Transport’s well established approach to appraisal, one that is recognised across the transport industry and conforms to the highest standards of evidence. I know that my noble friend is very concerned about this point, especially in connection with the appraisal of road transport schemes.
Many noble Lords talked about route selection. In terms of the London to West Midlands alignment, HS2 Ltd considered more than 90 options for stations and sections of the route. There are obvious benefits to staying close to existing transport corridors where possible, which is why HS2 Ltd’s recommended route crosses part of the Chilterns close to the A413 and the Chiltern line and, indeed, uses part of the Great Central line. Overall, an M40 route would be an inferior option. It would be longer, have lower maximum speeds, impact on more population centres, resulting in unacceptable impacts on communities and it would be more expensive. In answer to one noble Lord—I think it was my noble friend Lord Bates—since the main capacity constraint is in the south, HS2 will start in the south.
The noble Lord, Lord Stevenson of Balmacara, suggested that the nation could not afford it. The nation cannot afford not to invest in HS2. Investment in HS2, and our wider rail network, can help us overcome the economic challenges we face and secure the country’s economic future. The construction costs will be spread over two decades and on this basis will involve an average level of annual spending of less than £2 billion a year at 2011 prices.
HS2, our main north-south rail arteries will be becoming increasingly disrupted and overcrowded, damaging our economy and our way of life, as pointed out by my noble friend Lady Scott of Needham Market. The Government have carefully considered the option of providing additional rail capacity, including upgrading existing lines. These might provide a short-term fix, but not a long-term solution. While alternatives may offer a good benefit-cost ratio, none is able to offer the scale of benefits or change that HS2 offers and would not deliver the increase in capacity that we require. Even the best alternative proposed would lead to decades of disruption on the existing network and lead to unreliable and overcrowded services and more freight on our roads. In answer to the question from the noble Lord, Lord Rosser, the capacity constraints make HS2 essential. The value of time saved is taken into account in the BCR.
My noble friend Lady Seccombe talked about community engagement. The Government and HS2 looked long and hard at possible changes to the route. However, the final design of the route is not yet set. The final design will be developed in consultation with local communities as part of the environmental impact assessment. Once that is complete, we expect to consult on the environmental statement in spring 2013. I encourage everyone with an interest to participate in that consultation. We want local communities to get engaged in the design through their local forums. I do not understand how the problem described by my noble friend arose. I hope that she will brief me later after the debate.
Viscount Astor: My Lords, as we have 10 minutes, may I ask my noble friend to address one issue? Does he accept that the benefit/cost ratio has fallen below 1.5? I will quite understand if he is unable to give a detailed answer, but perhaps he would be kind enough to write to me and other noble Lords who have spoken today.
I know that there is no easy way of building a railway in our country but the concerns of local residents are an important priority for the Government and HS2 Ltd will ensure that local views are fed into the design process and that local communities are aware of what progress has been made with the railway.
My noble friend Lady Seccombe asked what the Government are doing to address blight. The Government recognise that HS2 is already having an impact on communities along the line of route. That is why the exceptional hardship scheme was introduced. When the Secretary of State for Transport announced the decision to proceed with HS2 in January 2012, the Government also committed to introducing a generous compensation package for the long term that goes beyond what was required in law. Developing the right property compensation package for HS2 is complex, as it must be fair to those affected by HS2 proposals while also recognising our broader responsibilities to the taxpayer. The Government will shortly be consulting on the detailed proposals to help affected property owners, with the aim of introducing long-term compensation measures as soon as possible.
My noble friend Lord Astor asked about the HS2/HS1 link, a point raised previously by the noble Lord, Lord Berkeley. I can assure my noble friend that the Government intend to connect HS2 to HS1 through a link built in the first phase. This will enable trains to run directly between HS2 and HS1 without the need for passengers to change trains. There are clear strategic advantages from integrating Britain’s new high-speed rail network with the only existing high-speed line in this country and thence to the growing high-speed rail network on the continent.
My noble friend Lord Astor talked about the demand for HS2 in a digital age. Some have questioned the demand projections underpinning the case for HS2, positing a world in which improved digital communication replaces the handshake and the face-to-face conversation and thus the train journeys that make them happen. If we turn to history, it is clear that the advent of the telegraph, the telephone and now the tweet have not lead to reductions in travel demand—far from it. I reassure the House that the Government will continue to keep the economic case and indeed the wider business case under review throughout the life of the project to ensure that it reflects the latest research, evidence and understanding of the project.
HS2 is much more than just a BCR. It is about a step change in capacity and connectivity for passengers. It is about unlocking the potential of our major cities and regions, supporting jobs and driving growth. It is about building a dynamic society, a thriving economy and a successful Britain. HS2 is not just viable; it is a vital part of our future prosperity.
Lord Hodgson of Astley Abbotts: My Lords, I shall also speak to Amendments 44, 46, 48 and 49. They say that you should never begin your remarks with an apology, but I apologise because I had understood that there would be a mini-debate and the noble Lord, Lord Thomas of Gresford, and I were in the second half. He de-grouped so I am something of a tail-end Charlie.
come to later. I do not expect my noble and learned friend on the Front Bench to give a long and considered answer, because he gave one before the dinner break, but I hope that he will be able to take on board some of the points that I shall make in the next few minutes.
As this is the first group of amendments that I have proposed, I should declare interests. I am a trustee of Fair Trials International and treasurer of the All-Party Parliamentary Group on Extraordinary Rendition. However, as I said at Second Reading, I am not a lawyer and I have never been involved in the security services. I said then that I ventured out on to the ice with some trepidation and, watching the legal thunderbolts that flew across the Chamber earlier this evening, my trepidation has not reduced. However, I was encouraged by another contributor to our Second Reading debate who said that this was too important a matter to be left to the lawyers, so I am venturing a bit further on to the ice.
All these amendments are probing and I hope to tease out the Government’s thinking on a number of issues. To guard against the more obvious ways of making a fool of myself in your Lordships’ Chamber, I have enlisted the help of Tony Peto of Blackstone Chambers and of the campaigning group Reprieve, to whom I am extremely grateful. All the amendments that I have tabled, and more that we shall discuss later and no doubt at our next sitting, have a common theme and background about which I feel strongly. I hope that the Committee will forgive me if on this first set of amendments I explain the background in a little more detail—I will not have to do it again—and, if this appears slightly unlawyerly, I apologise.
I said at Second Reading that I recognised that there was an important issue here, and before the dinner break the noble and learned Lord, Lord Woolf, said that there were going to be a number of cases where national security was inherently and implicitly involved in the case. At the nexus of civil liberties and national security lies the fact that not everybody can know everything and there are legitimate reasons for having to keep some things secret. However, to keep matters secret is undesirable, so I believe that there has to be a strict test of justification. My amendments, all of which are probing at this stage, are designed to develop the Government’s thinking about this justification and, in doing so, to have a chance to benefit from the legal expertise in your Lordships’ House.
My concerns about the Bill can be grouped under two headings. Both concern fairness and are what I have described before as regulatory capture and the possible impact of these proposals on our society. I have said before that I am always concerned about the naturally inherent risk of the adverse nature of regulators, and the security services are one such example. In all fields, whether it be national security, social services or financial services, regulators are judged by failure or at least by the absence of failure. Therefore, regulators tend to want to set the bar as high as possible to give themselves the maximum amount of power or points of leverage to deliver their allotted task.
of confidentiality over a matter so as to avoid issues of incompetence or embarrassment being revealed, or the revelation of a smoking gun. I am hoping to find out during our Committee proceedings how we can lean into the wind, so to speak, and make sure that the procedures that we set up really do enable the sorting of the wheat from the chaff in these difficult and critical areas.
My second area of concern is about the impact on our society of these measures, and this underlines the critical importance of our discussions. This is not about legal technicalities but real life. I take part in the Lord Speaker’s outreach programme. It is a fascinating experience which I thoroughly enjoy. I never go to one of these meetings without learning something about our society and the way in which your Lordships’ House and Parliament are viewed. Most of my visits are to schools, to young men and women of 17 or 18 years of age, doing A-levels. I am a West Midlander, so my visits take me to schools in Birmingham and the Black Country, where there is a large black minority ethnic, particularly Muslim, population. I emphasise, as background to our discussion on the Bill, that these young men and women are keenly interested in our judicial system and its application to them and their communities. When you see them, you get questions—I welcome the questions, because I get such a lot from them—about Guantanamo Bay, Binyam Mohamed, and all these aspects which are the background to what we are discussing during the passage of the Bill.
My second reason for tabling my amendments is therefore to ensure that we do not strain the fabric of our society too much and so, indeed, to ensure that when I begin my visits again to the schools in the autumn, I can look these young men and women in the eye, and say, “Yes, we did look at these issues; yes, we did explore the ramifications; yes, we did have legal expertise bearing down on it; yes, we did make the Government justify their policies; and no, this is emphatically not a system with any in-built bias”.
So, with that rather long-winded explanation of the amendments that I have tabled, to horse! Amendment 43 is a trigger for the operation of Clause 6(1), the application for a CMP. During the earlier debate, I was interested in the balance of advantage for PII and CMPs. Amendment 44 sets out the conditions to be fulfilled before the trigger can be pulled. Four of these are listed: that the court has gone through a PII process; that the process has resulted in excluded material; that material includes evidence damaging to national security; and that, as a consequence, the court is prepared to consider an application for a closed material proceeding.
Amendment 46 sets three tests for the court to consider before making a deliberation: that the threshold conditions have been met; that only a CMP can provide a just resolution and PII will not work; and, lastly and perhaps most importantly, that,
“there is no serious risk of injustice to either party”.
the amount of judicial discretion and therefore improve the application of justice and reduce the ability of the Government to dominate the proceedings.
Amendment 48 inserts a new set of tests for the court to consider in deciding to allow an application. There are five of them, which are self-explanatory, but I draw attention to the last one, on which I am again told that in the interests of open justice and natural justice the statement of whether it would be in the interests of justice to grant the application is again likely to increase judicial discretion.
Finally, Amendment 49 requires the Secretary of State or another party to go through the PII process before applying for a CMP, as opposed to considering whether to make such an application for a CMP outright. The purpose behind these amendments overall is to increase the amount of judicial discretion, and to do so to a greater extent than the alternatives that have been put before us tonight. I beg to move.
Lord Lester of Herne Hill: My Lords, in a sense, we have been through this before. This is another means of tackling the problem. I entirely agree with the noble Lord, Lord Hodgson, in raising issues of public confidence. It is a matter of great concern to me that what we call civil society—often very uncivil civil society—has reacted to the Green Paper and the Government’s proposals in extreme terms, it even having been suggested that we should deny the Bill a Second Reading. There is a great deal of cynicism and suspicion about the work done by our security and intelligence agencies. The fact that the press feel aggrieved that the principle of open justice is necessarily limited by the Bill that we are now considering again leads to the impression that something perfectly unconstitutional and disgraceful is being put forward.
I have never taken that view and have agreed with the Bingham institute and Tom Hickman in particular in the way in which they have approached the problem. However, the Government have not done themselves any service by the way in which they produced a Green Paper and put forward far too broad terms, which gave rise immediately to a justifiable negative reaction, and they are now rightly narrowing what they originally sought to do. We have to be careful to realise as we sit in this Chamber at this hour that what we are now doing will probably not enhance confidence outside but, rather, do the opposite, much as we regret it. We must do what we can to combat cynicism and lack of confidence in the work done by the security and intelligence agencies.
I sometimes worry that, unless we give our judges appropriate powers and discretion, we will in the long run also undermine public confidence in the judiciary. It will be most undesirable if the judges are seen merely to be rubber stamps. I just want to give one example. The only time I took part in closed evidence material proceedings was when I represented the People’s Mujahideen of Iran, which had been proscribed by Jack Straw and was seeking to have the proscription removed. It was prevented from collecting funds, having meetings or publishing material. I turned up as its advocate. There was a special advocate but the special
advocate was unable to be of any use at all because what we needed to know was the gist of the case against the People’s Mujahideen of Iran.
After two days, my clients came to me and said that this was a completely unfair procedure, that they did not have the faintest idea of the gist of what they were supposed to have done and that they were now going to withdraw from the proceedings and withdraw my instructions. I perfectly understood their view. Later, they chose another counsel, David Vaughan QC, who went to Luxembourg. The Court of Justice in Luxembourg eventually found in their favour, as a result of which I think that the organisation is no longer proscribed.
I say all that because, having lived through that experience, I understand perfectly why the closed material procedure causes such anxiety to the press, to members of the public who take an interest, to those who go through the procedure and to the special advocates. It is no use saying that special advocates underrate their own capacity. They have to live with this procedure and do the best they can, and I perfectly understand why they have these reservations.
Baroness Berridge: My Lords, I rise briefly to concur with the comments of my noble friend Lord Lester, as well as my noble friend Lord Hodgson, particularly bearing in mind his quote about the possible impact on our society. Although we had an incredibly in-depth legal discussion on the previous group of amendments, I felt some frustration as what we were rightly considering was whether we can in particular cases get the least imperfect solution. That is the purpose of the Bill. However, I believe that there is a wider purpose—that of public confidence in our judicial system, which, along with the Royal Family, is one of only two institutions in our society that have remarkably high levels of public trust.
I say in belated response to the noble Baroness, Lady Manningham-Buller, that we heard much in the Joint Committee about cases that are saturated in national security material. However, we also heard evidence from special advocates and lawyers that cases so saturated result in judgments that are virtually blank. I could not help but think of the manner in which such judgments are treated in our media and the Twittersphere when claimants appear with blank sheets of paper, saying, “This is the country of the Magna Carta; this is the British judicial system”. That is not a reason for our never having these procedures, but we need to bear in mind overall confidence in the judicial system when a conclusion is able to be reached in the three cases which have been referred to by Mr Anderson QC and which the special advocates are now looking at.
That you should deal with those three cases in a way that protects confidence in the system as a whole is not a vacuous argument. I do not believe that you can separate the just result in those individual cases from the overall system. I concur with the sentiments that have been expressed and I am grateful for having had the opportunity to talk about overall confidence in the judicial system as opposed to results in individual cases.
Baroness Manningham-Buller: My Lords, I am surprised to be compared to a regulator on the strength of the organisation to which I once belonged. I see very little parallel between the security and intelligence agencies and regulation. The conclusion that that makes them overcautious is therefore entirely spurious.
Of course, public opinion of and confidence in the judiciary is extremely important, and we do not want to do anything to damage that. Notwithstanding comments in the Daily Mail, I think that public confidence in the security and intelligence community is not helped by the fact that, in many cases, we have been unable to defend ourselves because of the problem that we are describing today. None the less, as I said at Second Reading, the support that my colleagues get from the public is extensive and perhaps greater than the noble Lord, Lord Lester, suggests.
Another point relates to secret information. We need to have the confidence of those—including many young men and women from the communities to which the noble Lord, Lord Hodgson, referred—who give information to the security and intelligence agencies at risk of their lives and in secret. That is one of the fundamental reasons for secrecy. I ask the Committee to remember that in thinking of the confidence in other regards that we want to maintain.
Lord Thomas of Gresford: I respect the views that the noble Baroness has just put forward, but I do not think that public confidence is improved if a closed judgment is given on closed material to the Government in a particular case. It is essential that the public know what is going on as much as is conceivably possible. The interests of national security can be invoked in only the smallest area of cases if confidence is to be maintained.
Lord Falconer of Thoroton: The noble Lords, Lord Hodgson and Lord Lester, and the noble Baroness, Lady Berridge, have made important points, but we must surely address the issue on the basis of what within our court system produces the most just result available, recognising that imperfect justice may be involved. Everybody accepts that two conflicting principles are valid, namely a properly functioning justice system and the need to protect national security. My view is that if a case is made that unjust results might be being reached, with claimants making claims that they know the Security Service cannot defend, then we should do enough to enable our justice system to properly defend those cases. Open justice is a means to producing justice. The courts have always recognised that if you cannot do justice that is open—for example, if you destroy the confidentiality that the justice system is designed to protect—then exceptional measures are needed for exceptional cases. I do not think our security services are being well served if they are forced to admit claims that they should not, and neither is respect being paid to our judges if they are simply a rubber stamp.
The right answer in relation to this issue is, first of all: is the case proved? That is an open question at the moment, as far as I am concerned. If the case is proved that some measures are needed then these
should be kept to a minimum and the judges should decide what is required in order to create the fairest possible system. The problem with the amendments from the noble Lord, Lord Hodgson of Astley Abbotts, which I think he would be the first to acknowledge, is that they involve the judge considering whether there would be any serious risk of injustice to either party if the application for a closed material procedure were to be granted. However, everybody involved in closed proceedings knows perfectly well that if you have procedure that reveals evidence about person A and A never knows what is said about him or her, the prospect of an injustice is significant. However, that may be the best that can be done under the circumstances.
I respect the noble Lord, Lord Hodgson of Astley Abbotts, for raising these points. I just do not think the House of Lords can avoid asking: what is the right answer? The only guide we have is to try to reach the right answer. That is the only way we shall retain respect for what we do. The task we are engaged in is trying to balance those two factors. As I said before supper, what we are aiming for in this bit of the debate is fairness because ultimately national security can be protected by the security services pulling a case, so it is all about deciding whether there are a sufficient number of unfair cases that some special procedure needs to be crafted.
As it happens—and I think the noble Lord, Lord Lester of Herne Hill, is right here—the points raised by the noble Lord, Lord Hodgson of Astley Abbotts, are pretty well the same points we had before supper, and he acknowledged this in his opening remarks. The noble Lord’s basic approach in Amendment 44 is to say that one should go the PII route first; then only if the PII decision is non-disclosure do you go on to CMP. I do not like that approach for the reasons I advanced in response to the amendment from the noble Lord, Lord Faulks, in concert with the noble and learned Lord, Lord Woolf. It is too inflexible. I do not see why we cannot give the court all the options at the time it makes the decision, as the noble Lord, Lord Thomas of Gresford, suggested. This would avoid opportunistic applications and allow the court to come to the fairest possible results. I would be repeating myself if I went on about that. The noble Lord’s amendment has promoted debate, but the effect of that debate is that we do not want the lack of flexibility that his amendment proposes.
The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I thank my noble friend Lord Hodgson of Astley Abbotts for putting forward these amendments and for indicating his concerns: that we should be seeking fairness and reflecting on the possible impacts upon society.
“appropriate mechanism for triggering the CMPs will help to ensure that they are only used where it is absolutely necessary to enable the case to proceed in the interests of justice. The principle of open justice is an extremely important one, and any departure from it should be no more than is strictly necessary to achieve a proper administration of justice”.
Inasmuch as we are testing this legislation, that is where this House serves an important part of our democratic procedures. Before the dinner break we tested it very well with all the points that were made. I hope that when my noble friend does the outreach he can say that, in trying to ensure no more than is strictly necessary to achieve the proper administration of justice, these tests have been applied and that there has been a very active engagement of Members of your Lordships’ House in trying to ensure that that outcome is reached.
If we are trying to ensure fairness and that there should be no in-built bias, there will be cases where the use of closed material proceedings means that people who might otherwise have been excluded get an opportunity for material to be heard which might well exculpate them. That may be more relevant to one of the later clauses.
The noble Baroness, Lady Manningham-Buller, made a point about fairness. Indeed, it might be important fairness in terms of how the public approach these matters. If the intelligence service, the Security Service, has a full answer to many of the allegations made against it, it is inherently wrong that it should be denied being able to put forward an answer. I perhaps can do no better than again to quote Mr David Anderson QC, much quoted in today’s deliberations:
“We are in a world of second-best solutions: but it does not seem to me that the level of injustice inherent in the use of CMPs in a case of this nature necessarily exceeds either the injustice to the claimant of a case being struck out, or the moral hazard and reputational damage to the intelligence agencies that is caused by settling a case which, had it been possible to adduce all the evidence, would have been fought”.
My noble friend indicated the type of safeguards that he wished to put in. I will not go over them in any detail again but, in response to the previous debate, I think that I explained why the Government do not believe that an exhaustive use of PII before applying for a CMP is appropriate. There clearly will be cases when it could be futile to do so because it is very obvious that to exclude all that evidence by way of PII could render the case that a proper defence could not be put forward.
If my noble friend’s intention is to ensure that CMPs are used only in extremely rare circumstances, I am not persuaded that these amendments are the way in which to achieve that. The noble and learned Lord, Lord Falconer, indicated some of the difficulties inherent in the requirement that there should be no serious risk of injustice. The point to remember is that important safeguards are built into this Bill to ensure that national security is not claimed erroneously and that the fair trial rights of all parties are respected. The court will grant a declaration that a CMP may be used only where disclosure of relevant material would otherwise damage national security. As I indicated earlier, there is a second stage in which the court—with the full engagement of special advocates appointed to represent the interests of an excluded party—will adopt a painstaking process to ensure that only material heard in closed session will be material, the disclosure of which would damage national security.
In addition, I mentioned that the operation of the procedure is explicitly made subject to the right to a fair trial protected by Article 6 of the European Convention on Human Rights under Clause 11(5)(c). In a CMP, the court will make the necessary orders to ensure that the proceedings are conducted in a manner that complies with the article. The judge, with the assistance of the special advocates, will ensure that as much information as possible can be disclosed into open court. If the full document cannot be disclosed, the court will also consider whether it could be disclosed in part through redactions or whether a summary could be provided to the other parties without damaging the interests of national security.
If there is a serious risk of injustice of the kind which my noble friend describes, the court can take the steps which I have described. Equally, if the judge is not satisfied that a CMP has properly enabled the fair testing of closed material he will simply put no weight on it. That approach is the right one in the national security context. A court will grant a declaration under Clause 6 or permit material to be heard in closed session only on the extremely narrow ground that disclosure of material would damage the interests of national security and there are strong safeguards already available to the court.
It is important that we air not only some of the details of my noble friend’s amendment but look at the context in which he proposed it. However, I believe that these balancing considerations have been considered in the proposals before your Lordships’ House. While I do not in any way quibble that these amendments raise an important issue, I hope that I have explained why they are unnecessary, given the other safeguards in the Bill. I ask my noble friend to withdraw the amendment.