My Lords, I began by saying that I did not believe that this was an open-and-shut case, and so it has proved. My noble and learned friend has referred to the “statutory straitjacket” and problems thereof. Interestingly enough, while the debate was going on, I was passed a note by one of my noble friends showing a case in which he was involved, where national security was invoked in quite an extraordinary way. I do not therefore think that I have yet reached entirely firm ground.
I am grateful to my noble friend Lord Deben for his powerful and very apposite remarks and speech. My noble friend Lord Lothian is of course an eminent Scottish advocate. I am not an advocate, Scottish or otherwise, but in reference to his remarks on Clause 6(2) about the court deciding, I am told that where a judge is faced with a statement by the Secretary of State leading to a CMP—not a weighing of evidence like we have in PII—to the effect that this would be damaging to national security, the judge is unlikely to push back on it. Therefore, the idea which the clause might technically give rise to is not, according to legal opinion that I have heard, likely in practice to happen. Those who have experience in your Lordships’ House will be able to discern this better than I can. That is something which we can no doubt explore another day.
I said that the noble Baroness, Lady Mannigham-Buller, had forgotten more about national security than I would ever know. It was meant to be a compliment, for the avoidance of doubt.