My Lords, it is a great privilege to follow the noble Baroness and I am sorry to bring an end to this welcome interval from lawyers and to return briefly to the dry legalities of the Bill. The question in this Bill of who decides national security has troubled me. Clause 6 seems to suggest that the judge has some role in deciding it. Amendment 59 suggests that an exercise should be performed by the judge in which he or she can assess, by balancing the various processes—presumably roughly in accordance with the ex parte Wiley approach—which should come first, the interests of justice or national security.
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It seems to me that the noble and learned Lord, Lord Hoffmann, was right, in the well known case of the Secretary of State for the Home Department v Rehman, when he said that,
“the question of whether something is ‘in the interests’ of national security is not a question of law, it is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision, they are entrusted to the executive”.
Under Clause 7, if there was a frivolous invocation of national security, a judge could simply reject it. This amendment suggests that a judge can substitute his own view. As I understand it, were the Government to take the view that the judge had got it wrong and had overlooked what the Government considered to be the interests of national security, the Government would then be in precisely the position they are in—that is, having to settle a case—which is the very rationale behind the Bill.
Of course, gisting is a fundamental part of the very difficult role the special advocate has to perform. I agree with my noble friend Lord Lester that it is perhaps slightly clumsy to incorporate Article 6 into the Bill. As a matter of law, the Human Rights Act provides that the convention is read into the Bill, and there is a declaration of compatibility on the face of the Bill. But many leading cases have referred to Article 6 in reviewing the various provisions giving rise to the interference by the Executive in the liberty of a subject, and this seems to be a safeguard that the Government have thought appropriate to put in the Bill. Gisting is considered perhaps to be part of the general approach to fairness.
I entirely agree that gisting is desirable. I suppose the Minister may rely on what the noble and learned Lord, Lord Hope, said in Tariq v the Home Office, that,
“there cannot … be an absolute rule that gisting must always be resorted to whatever the circumstances”.
Sometimes it must be almost impossible to provide by way of a gist that which a special advocate would naturally want to know but would be a potential breach of national security; a gist simply is not practical. Therefore, while acknowledging the force of the arguments in favour of gisting, we should hesitate a little before providing that there should be an absolute hard and fast requirement.
I share with all noble Lords a desire for fairness and for safeguards to be inserted, but I respectfully submit that we must not be too dismissive of national security, although equally it should not be lightly invoked.