That is exactly what the Supreme Court said in the al-Rawi case: that a judge has at his—I am afraid it mostly is “his”—disposal are a number of tools to deal with issues that are sensitive and would create problems for national security. If an application for public interest immunity is made and the certificate is signed by a Minister, the judge will go through a number
of loops. He will consider on an application ex parte whether, for example, it is possible to have a fair hearing using anonymity. He will decide whether it is possible to have a fair hearing with confidentiality rings. Imperfect as it is, it is one of the ways in which he will reach a conclusion after balancing the public interest in holding an open and fair administration of justice and the public interest and harm to our national security from disclosure. He does that anyway.
The problem that the Supreme Court recognised in its finding on al-Rawi is that at present the judge does not have the option of a CMP unless we give him that option. That is what the Bill seeks to do. We have explicitly stated in the Bill that there should be a balancing exercise by the judge. In Committee the Ministers tried to limit that. There is no balancing now. All a judge has to consider is whether the procedure is fair and effective, rather than a balance of what is in the public interest.
I am quoting what the Joint Committee said in its report last week, which the Minister finds so objectionable. After his amendments in Committee were defeated by one vote—the Lib Dems voted with Labour—the Joint Committee said that
“there is nothing in the Government’s revised clause 6”—
[Interruption]. The Minister might mutter, but the Committee said that
“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other.”
For us, this is a failing. The test applied at the gateway is very important.
4.30 pm