Justice and Security Bill [Lords]

Debate between Malcolm Rifkind and Sadiq Khan

Monday 4th March 2013 Commons Chamber

[Sadiq Khan]

On at least four occasions over the past 18 months the Minister has told the public, the media, MPs and Members of the House of Lords that judges had full discretion, notwithstanding the four changes that he has agreed to make over the past 18 months. He cannot be right on all four occasions. Let me tell him what the House of Lords did, pursuant to the report of the Joint Committee on Human Rights. It put on the face of the Bill the balancing exercise that a judge should undertake, balancing on the one hand the public interest in the open and fair administration of justice and the public interest in making sure that there was no damage to our national security as a consequence of material being disclosed. In Committee the right hon. and learned Gentleman tried to tie the hands of that balancing exercise. In a new report last week from which I quoted, the Joint Committee said that he tried to do the very same thing. He is again arguing today why he is right and all the members of the Joint Committee are wrong.

[Sir Malcolm Rifkind (Kensington) (Con)]

rose—

[Sadiq Khan]

I will give way to the Chair of the Intelligence and Security Committee, then I will make some progress.

[Sir Malcolm Rifkind]

Does the right hon. Gentleman not appreciate that the bald choice that he is trying to make between national security and the administration of justice certainly applies when one is considering a public interest immunity certificate, because that removes the evidence completely from the consideration of the courts in the interests of national security? But the Wiley test that he referred to just does not apply when one is dealing with closed material procedures because there is a perfectly good argument—the right hon. Gentleman may not accept it—that the administration of justice is better served by at least the judge hearing all the evidence than the evidence being completely withdrawn and not being able to be taken into account at all.

[Sadiq Khan]

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 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.