Government prepares for negotiations in the Lords
Is another House of Lords perfect storm about to break over the Justice and Security Bill?
This is the bill which, depending on your viewpoint, creates an illiberal system of secret justice or finally squares the circle and reconciles the requirements of justice with those of national security.
The conundrum is this: how does the state allow material into the courts without compromising intelligence sources or intelligence-gathering techniques, and how can justice be served in civil litigation like actions for damages for false imprisonment, or torture, if that material is not made available?
The government's solution, embodied in the bill, is to allow national security material that is currently excluded from court - and only that material - to be heard by a judge. This is called the Closed Material Procedure or CMP. Claimants will not be allowed to see CMP evidence, but an independent advocate will represent their interests and be able to challenge it. And tomorrow, sometime between 4pm and 7pm, peers will vote on a series of amendments aimed at that process.
At the heart of the action will be the crossbench superlawyer Lord Pannick, who played a major role in the dramas around the Legal Aid Bill, back in March.
There are dozens of amendments down but he is behind two of the most important (36 and 37, since you ask...) which set tough conditions before CMPs may be used. There will have to be a full judicial balancing of whether "the degree of harm to the interests of national security if the material is disclosed would be likely to outweigh the public interest in the fair and open administration of justice".
And CMPs should only be used if "a fair determination of the proceedings is not possible by any other means" - in other words, as a last resort.
Lord Pannick's amendments have cross-party support; fellow superlawyer Lord Lester, a Lib Dem; Labour spokesman Lord Beecham and the Conservative Lady Berridge have also signed them. Which is where the perfect storm comes in. Most of the time, the combined vote of Conservative and Lib Dem peers is enough to win the day for the coalition in the Lords. But there have been quite a few occasions where a combination of Labour, crossbench peers and Lib Dem and Conservative rebels have defeated the government.
The government lost as recently as 22 October, when precisely that kind of combination was mobilised to insert a clause into the Local Government Finance Bill to require ministers to hold an independent review of all council tax reduction schemes within three years of the Act coming into effect.
Given there is clear discomfort with CMPs in both coalition parties, (the Lib Dem conference voted against them, and high-profile Conservatives like David Davis have attacked them) and that civil liberties issues tend to animate the large contingent of lawyers and judges on the crossbenches, the government whips clearly have their work cut out.
Last week the government conceded that ministers could not ordain that CMPs should be used in a particular case, and tomorrow, the minister responsible, Lord Wallace of Tankerness will probably go into the debate with more concessions up his sleeve.