I know that the right hon. and learned Gentleman has not practised law for a while, but he is wrong. The old Bill clearly said that if a Minister decides that there is a threat to national security, the judge must order a CMP. The improvements made by the House of Lords changed that and I am glad that he has accepted them.
The right hon. and learned Gentleman has lashed out—he did it again today—at what he called the “reactionary” elements of the civil liberties community. He is sniggering, but he will recall that he was once a part of that community. Does he really believe that David Anderson QC, the Government’s independent reviewer of terrorism legislation, fits that description? I remind him of what Mr Anderson said about the Bill’s original proposal that Ministers would trigger a closed hearing:
“That proposal seems to me profoundly wrong in principle. The decision whether to order a CMP is properly for the court in the exercise of its case management functions.”
He also said that a CMP should be used only if
“the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”
It seems that it was not just me who got it wrong; according to the Minister without Portfolio, his own independent reviewer of terrorism legislation also got it wrong.
Advocates also appear to have got it wrong by not understanding the Bill as previously drafted. Many esteemed legal Members of the other place, such as Lord Pannick, Lord Macdonald and Lord Phillips, also got it wrong if the Minister without Portfolio is correct.
On 19 November, the day the other place considered the Bill on Report, an editorial in The Times—hardly a member of the “reactionary” civil liberties community—said:
“The Justice and Security Bill being considered in the House of Lords today cannot be allowed to stand in its current form”.
The Daily Mail, which is not historically known to be a “reactionary” element of the civil liberties community, either, has also consistently opposed the right hon. and learned Gentleman’s original proposals.
I accept that some have argued strenuously against the whole principle of CMPs in our civil courts. Others have focused their energies on ensuring that the Bill has proper checks and balances in place.