Sir: Your report of the Court of Appeal's hearing in the Ordtech case ("Appeal court quashes 'gagging orders' ", 18 July) indicates that the public interest immunity certificates signed by me, Douglas Hurd and Mr Howley (for the Metropolitan Police) were overturned. This is wholly untrue and completely without foundation. The certificates made a claim that certain limited information in the documents should be protected from disclosure in the public interest. Those claims were upheld in full by the Court of Appeal.
This was a decision by the Court of Appeal undertaking its function of balancing the competing factors of the public interest: the interests of the administration of justice, on the one hand, and the other public interests (national security, foreign relations) advanced by those signing the certificates. I and other signatories of the certificates carried out an initial balancing exercise, as we are encouraged to do following a decision of the House of Lords last year, and the Court of Appeal reached the same conclusion as we had.
The certificates made it quite clear that it is for the court to make the final determination, and even if the Court of Appeal had decided in this instance that the result of the balancing exercise favoured disclosure, this would not have caused me or the other signatories any embarrassment. The court would have made the adjudication which is its function. The law is clear. It is for ministers to make a PII claim (having, where appropriate, carried out the balancing exercise as far as they can do so); it is for the courts ultimately to determine where the balance of the competing public factors lies.
In this case ministers and the court came to the same conclusion. The position is therefore completely contrary to that suggested in your report.
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