The Committee raise three principal areas of concern with proposals in the Bill to extend Closed Material Procedures (CMP) to civil cases. This would mean that the state would be able to present evidence without the other party in the case or their legal representatives having access to that evidence. The Committee state these proposals should be judged in the context of ‘fairness’ as the Government has indicated that is the rationale for extending CMP to civil cases.
The three concerns raised by the Committee are:
• The Government acts as the sole gatekeeper to the use of CMP in civil cases. The Committee say it is ‘constitutionally inappropriate’ for the government to have a dual role in civil proceedings of acting as a party to the litigation and being the gatekeeper deciding on how that litigation is conducted.
• The absence of judicial balancing. The Committee say that there is no justification for removing the Wiley balancing exercise under which the interests of national security in allowing CMP must be balanced against the damage to the public interest of fair administration of justice.
• The Secretary of State’s role in determining whether CMP or Public Interest Immunity (PII) would apply in a civil case. This would enable the Secretary of State to have power to decide what evidence is available to the party bringing litigation against the Government.
The Committee have published their report to bring these issues to the attention of the House of Lords ahead of second reading. Second reading is the stage where the House debate the general principles of a Bill. This is followed by Committee stage where the Lords undertake detailed, line–by-line scrutiny of the proposals and can make amendments to the Bill.