COMMONS AMENDMENT (Hansard, 2 December 1997)

§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. It may be helpful if I speak also to Amendments Nos. 2 and 4.
These amendments to the Bill will create a right of appeal from the Special Immigration Appeals Commission to the Court of Appeal on a point of law. The first new clause will provide an avenue of appeal from the Special Immigration Appeals Commission on a question of law where the commission has made a final determination of an appeal. The further appeal can be brought with the leave of either the commission or the Court of Appeal—and by either the appellant or the Secretary of State.
The appeal will be to the Court of Appeal if the commission makes its determination in England and Wales; to the Court of Session if it does so in Scotland; and to the Court of Appeal in Northern Ireland if it has been sitting in Northern Ireland. Experience of the cases considered by the three advisers suggests that most cases are likely to be heard in England.
This additional avenue of appeal on a point of law will mirror the existing arrangements for such a right of appeal in respect of decisions of the Immigration Appeal Tribunal which was introduced in the Asylum and Immigration Appeals Act 1993.
Having considered the point very carefully we have accepted that in the context of the new commission it would be more satisfactory for appellants to be able to have points of law dealt with on appeal to the Court of Appeal rather than dealt with by way of judicial review. The latter can, of course, involve consideration of points of law by both the High Court and the Court of Appeal. The fact that the commission itself will be chaired by a High Court judge adds weight to that argument.
1248 The second new clause and the other amendment made in the Commons are consequential. The second new clause simply ensures that the Lord Chancellor will be able to make rules which will govern the procedures to be followed when the commission receives applications for leave to appeal to the Court of Appeal.
The provision will be made in the same statutory instrument that will cover the other procedure rules provided for in Clause 5 of the Bill. The rules will be based very closely on existing provisions in the Asylum Appeals (Procedure) Rules 1996. As in those rules it will be made clear that the decision to grant leave will be able to be made by a single member of the commission. This would be the chairman or the other member specified in Schedule 1 to the Bill.
The amendment to Schedule 2 to the Bill is entirely technical. It will ensure that decisions taken by the Secretary of State will not be implemented while there is an appeal to the Court of Appeal pending.
I believe that these amendments represent an improvement to the Bill.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Williams of Mostyn.)

§ Lord Henley
My Lords, I have just two brief points. First, I welcome the fact that the Government have come forward with these amendments. As the Minister will remember—I do not, because it was my noble friend Lady Blatch who was involved—these were suggestions pressed repeatedly by my noble friend when the Bill was originally in this House. As my noble friend made clear at the time, the paramount consideration must be the national security interest, to which all other matters should be subordinated.
As the Minister will remember—I think I can put it this way—he doggedly insisted that no appeal was necessary. He stated baldly that the decisions of the new independent tribunal would be binding on the Home Secretary. He said that it was the mark of a civilised society to give protection to suspected terrorists. Whether that was merely an excess of libertarian zeal or a refusal by a new government to accept arguments put forward by this unreformed Chamber is unclear.
We have had a remarkable and welcome U-turn. The Government have tabled their amendments to do what we in this place suggested—the very thing the Minister so firmly rejected. I welcome also the remarks of the Minister's colleague in another place, Mr. O'Brien. He specifically and graciously praised this House. He said that the amendments reflected to a considerable extent the detailed and worthwhile scrutiny that the Bill was given in the Lords and the concerns expressed by the Opposition about the importance of protecting national security.
Secondly, the Minister will remember that we are midway through our deliberations on the Human Rights Bill. One of the major concerns with which we dealt last week relating to Clauses 10, 11 and 12 was the fast-track process and the inability to amend orders coming from the Government after a declaration of 1249 incompatibility following a ruling by the European Court of Human Rights or one of our own courts where those rights have been domesticated.
This Bill, as we know, is the result of a decision by the European Court of Human Rights in the Chahal case. The Bill, as the Minister will appreciate, has had general support from all sides in this House and in another place, but, it needed amending, as the Minister admitted and the Government conceded by bringing forward these amendments in another place.
Will the Minister now accept that, had the procedures in the Human Rights Bill been in existence when the Government were trying to make an order to deal with this issue rather than using primary legislation, it would not have been possible to bring forward amendments of this kind and it would not have been possible to deal with this particular mischief? That is an issue to which we must return at the Report stage of the Human Rights Bill.
I ask the Minister and his noble and learned friend the Lord Chancellor—after his remarks yesterday, I am not sure whether he still is noble and learned or a right reverend Prelate—to consider seriously the points that I have made relating to Clauses 10, 11 and 12 and the fast-track process of the Human Rights Bill. As this Bill has shown, it will sometimes be necessary to make amendments in order to deal with problems of the kind that I have mentioned.

§ Lord Williams of Mostyn
My Lords, I am grateful for the welcome which the noble Lord, Lord Henley, has given to the amendments. Bearing in mind the context of our discussions at an earlier stage, it must be remembered that the amendments give a right of appeal on law and not on fact. That was the basis of the earlier discussion.
As regards the Human Rights Bill, the noble and learned Lord the Lord Chancellor made it plain that the fast-track procedure is an option. He also made it plain during the long hours we spent discussing these matters that the Government have an option of fast track or of introducing a Bill. Because the issues are delicate and difficult, we thought it right to listen to the argument put forward. We decided that an appeal on fact was not appropriate and that an appeal on law was appropriate. Having reached that decision, we brought forward the amendments in another place as soon as possible.

§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Williams of Mostyn.)

§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. This deletes the amendment inserted into the Bill by this House to avoid infringement of the privilege of the other place to control charges on public funds. As the House is aware, the Bill has some minor financial implications. Those implications are acceptable in another place. Therefore, it was proper for our amendment to be deleted.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Williams of Mostyn.)

§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.
Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Williams of Mostyn.)