HL Deb 23 June 1997 vol 580 cc1430-40

3.5 p.m.

Lord Williams of Mostyn

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clauses 1 to 3 agreed to.

Lord Williams of Mostyn moved Amendment No. 1: After Clause 3, insert the following new clause— ("Determination of appeals DETERMINATION OF APPEALS .—(1) The Special Immigration Appeals Commission on an appeal to it under this Act— (a) shall allow the appeal if it considers—

  1. (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
  2. (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, and
(b) in any other case, shall dismiss the appeal. (2) Where an appeal is allowed, the Commission shall give such directions for giving effect to the determination as it thinks requisite, and may also make recommendations with respect to any other action which it considers should be taken in the case under the Immigration Act 1971; and it shall be the duty of the Secretary of State and of any officer to whom directions are given under this subsection to comply with them. (3) In this section, "immigration rules" has the same meaning as in the Immigration Act 1971.").

The noble Lord said: In speaking to Amendment No. 1, it may be convenient if I speak at the same time to Amendment No. 7. I expect that these amendments will be welcome to the House as they follow from our helpful debate during Second Reading.

During the debate the noble Baroness, Lady Blatch, the noble Lord, Lord Lester of Herne Hill, and others suggested that it was not clear on the face of the Bill whether or not the commission would be in a position to make decisions which would be binding on the Home Secretary. I am grateful for the great care which the noble Lord, Lord Lester of Herne Hill, took and in particular the fact that he wrote to me to thank officials in the Home Office for the great care that was taken. It is not often that officials receive their true reward—at least, not in this world—and it was received with gratitude.

As I explained in winding up our debate on that occasion, it has always been the Government's intention that the decisions of the commission should be binding on the Home Secretary. Indeed, this is a necessary part of complying with the judgment in Chahal. I promised then that I would consider whether a clarifying amendment would be appropriate. On reflection, I came to the conclusion that it was right that I should table such an amendment given the importance of the point.

Amendment No. 1 therefore introduces a new clause into the Bill which reproduces, with necessary amendments, the main provisions contained in Section 19 of the Immigration Act 1971. Those provisions set out a proper basis for the determination of appeals by the commission and ensure that its determinations will be binding.

At the same time, I have also brought forward an amendment to Schedule 2 which incorporates another practical aspect of the 1971 Act framework into the appeals to be heard by the commission. Amendment No. 7 simply provides that Section 18 of the Immigration Act 1971 will apply in respect of appeals brought under Clause 2. That section provides for the giving of notice of rights of appeal. While there is no question but that notice would have been given to those who will have rights of appeal under this Bill, this is another matter about which I accept that there should be no doubt.

As there will be no clause-stand-part debates today, it might be helpful to comment on a particular concern of the noble Lord. Lord Lester of Herne Hill. Of course, I cannot pre-empt final decisions about the form which incorporation of the European Convention on Human Rights will take. However, I can say that those who believe that their rights under Article 3 have been or would be violated will be able to rely on Article 3 in domestic proceedings once incorporation has been achieved. That will be the case in respect of any alleged violation and I hope that that is of reassurance to the noble Lord, Lord Lester of Herne Hill. I beg to move.

Lord Lester of Herne Hill

It gives me great pleasure to say what I am about to say. I should like to repeat what I have already mentioned in correspondence with the Minister; namely, the gratitude that I believe we should all feel not only towards the noble Lord and his colleagues but also to the Home Office advisers, both legal and otherwise, for the way in which they have dealt with the problems which emerged with regard to the Bill. So far as I am concerned, the matter has been dealt with in a completely satisfactory way. As the Minister indicated, the amendment makes clear that the decision of the commission will be binding in law. That is important. It is also important because it makes clear that the substance of the appeal will be a merits review. Therefore, where the commission reaches a different decision about the exercise of discretion, it will be able to allow an appeal on the merits of the case as I believe is required under the convention.

It is also very satisfactory to know that the Government entirely take on board the need for Article 3 of the European human rights convention regarding the prohibition on torture and inhuman and degrading treatment and punishment, and the need for that guarantee to be respected not only by the commission in its jurisdiction and by the Minister, but also by any courts or tribunals in the area or, I daresay, any other relevant area.

I should like to make two points. First, until Parliament decides to incorporate the European convention into UK law, there will be a hiatus, which will arise not just in this Bill but also with regard to criminal courts or special immigration adjudicators, in those rare cases where an individual claims that return, expulsion or extradition to another country would expose him to a well-founded risk—not a risk of political persecution in terms of the refugee convention, but a risk as regards a breach of Article 3 of the convention.

Can the Minister say whether I am right in supposing that what the Government have in mind is that the Secretary of State and his colleagues will do their best to ensure that where such cases arise they will be exercising their discretion so as to secure full compliance with Article 3? Our courts will be powerless to do anything if they do not do so. Until the convention has been incorporated, they will, as at present, have to go to the European Commission and the European Court of Human Rights if there is a breach. However, I do not anticipate that that will arise. I just thought that I should mention that hiatus problem.

Secondly, although no one is a keener supporter of the incorporation of the convention than me, I am a little troubled by legal certainty. Even if the incorporating statute makes it quite clear what the courts and the tribunals are to do in giving effect to convention rights—as I am sure it will—the ordinary citizen will not be able to tell by looking at the Bill when enacted, or indeed the three immigration Acts which are already on the statute book, that special adjudicators, criminal courts and this commission will have jurisdiction to interpret and apply Article 3. The only way that they will be able to tell that is by reading all of the material, together with the incorporating statute. Provided that the incorporating statute is clear, then, if one studies all the material, one will know what the law of the land is.

My own preference in terms of legal certainty would be for specific amending legislation in due course of the immigration codes and, ultimately, a consolidating

measure, a single immigration Act, covering the entire field so that those who are affected in the area can understand what the law is by reading a single document. Of course, that goes well beyond anything that can be accomplished by this Bill. It is not in any way an expression of discontent with the Minister's introduction, but I thought it right to raise the matter because I believe it is an object of good government that the law of the land should be accessible to ordinary people, not only to specialist lawyers and, I dare say, only a few of them.

Although I perfectly understand that what is contemplated is future legislation that will domesticate Article 3 of the convention with the other provisions, I hope in the long run that the Home Office might see its way to putting our specific statutory code into a single consolidating measure which would reflect the convention to the extent that is necessary. I am an enthusiastic supporter of the amendment and indeed of the second amendment to which the Minister spoke.

3.15 p.m.

Baroness Blatch

The cases subject to the provisions of the Bill will, by their very nature, be highly sensitive. My concern is to protect the national security interest which should not in any way be subordinated to the interests of any one individual. For that reason I have some anxieties about Amendment No. 1.

First, given that the decision of the commission is to be binding on the Home Secretary and given the seriousness of the issue—namely, that the Home Secretary of the day is being challenged for having taken the view that national security interests must be protected—it seems reasonable that he should be given a right of appeal to the Court of Appeal. Not only is the decision binding on the Home Secretary, but the wording of the amendment is very open-ended. Indeed, subsection (2) of the amendment refers to the commission making the decision and mentions the, directions for giving effect to the determination". It also appears to give a right to make recommendations without limitation. There is no description of the scope for such recommendations regarding what they could or should be; for example, what scope is there for subjectivity? What scope is there for the Home Secretary of the day to have the case that the commission puts disregarded by the use of recommendations with respect to any action that must follow the decision? Further, do the last two lines in subsection (2) also require the Home Secretary to comply with the recommendations? The wording would certainly appear to convey that fact.

A duty of the Home Secretary is to protect the national interest and national security. Therefore, I believe that we should tread very cautiously when handing the final word to a commission. I have read the draft rules—and I am grateful to the Minister for allowing me to see a copy of them—and I am not sure that they are entirely inclusive. They are very procedural, which they need to be; but what criteria will be adopted to guide the work of the commission? For example, what is the commission discussing? The noble Lord, Lord Lester of Herne Hill, referred to the fact that it would be a merit review. However, that is not clear from the wording of the amendment. It simply says that, the discretion [of the Home Secretary] should have been exercised differently". There is no real guidance in the wording as to what the criteria would be.

Therefore, it is not clear whether the commission, which may regard the plight of the individual appellant more favourably than the damage that may be done to the country's interests as a whole, would be free to subordinate the national interest to the interests of the appellant. I do not believe that the amendment would allow a Home Secretary to seek a second opinion. Therefore, the final word would rest with the commission. Can the Minister say what guidance is to be given to the commission regarding the criteria by which it will decide that the Home Secretary—who, after all, is protecting the national security and interest—should have exercised his discretion differently? How should he have exercised his discretion differently, and on what basis? After having considered the information and evidence given by the Home Secretary, or given on his behalf, what criteria would the commission use? Is it free, for example, to give greater weight to the evidence of the appellant and to disregard the evidence of the Home Secretary?

I have said that I was grateful to the Minister for giving me a copy of the rules. That was accompanied by a letter which promises possibly more amendments on Report. It appears that consideration will be given to whether there may be a need to provide a right of appeal in certain limited circumstances against a refusal of entry clearance on national security grounds in order to ensure that there is no risk of breach of Article 8 of the convention. To whom and on behalf of whom would the appeals be made? What would be the grounds for extending the provisions of this Bill?

Lord Lester of Herne Hill

Before the noble Baroness sits down, I hope she will indicate whether she agrees that the duty of Ministers, including the Home Secretary, is not only the paramount duty to secure national security in the interest of the nation as a whole, but also full compliance with our international treaty obligations under the convention and full compliance with the European rule of law, including the absolute prohibition on exposing individuals to torture, whether in this country or in other countries.

Baroness Blatch

I absolutely agree without equivocation that we have a national and an international obligation to abide by the European convention. During my time at the Home Office I have not found that the Home Secretary of the day, or the officials advising him, ever overtly came to any decision that they believed was in breach of our obligations under the European convention, or the United Nations conventions for that matter. We are dealing here with a number of matters. We are discussing a special measure for special circumstances. The particular scenario is the national security interest of the country as a whole. We need to have balanced judgments; we are discussing the judgments of Solomon and in those cases it is difficult sometimes for that balance to be struck. The plight of the appellant may be serious and may well need to be met under the convention. However, there are other solutions than necessarily providing accommodation and succour in this country if meeting the needs of an individual compromises the national interest as a whole. In such cases it is possible to seek other solutions.

After having studied all the evidence and information in relation to a particular case that is placed before him, a Home Secretary may have reached a view that the national security would be compromised if he makes a particular judgment. There is only one hearing and one final judgment by the commission. If after having been advised by officials, the Home Secretary has reached the view that the national security of this country would be compromised if he reaches a certain decision, I suggest that one hearing on behalf of the appellant is not enough. I make a plea that if this decision is to be binding, the Home Secretary ought to have a right of appeal at least to seek a second opinion as regards whether the interests of the country are not being compromised following a particular decision. I believe that the security of the country is just too important for that not to be the case.

Lord Williams of Mostyn

There is no question of a tribunal of this quality doing as the noble Baroness, Lady Blatch, indicated; namely, disregarding the evidence of the Home Secretary. That is quite inconceivable. This is not a mechanism set up on behalf of the appellant alone; it is a mechanism of an independent body of high quality. We must bear in mind the fact that the judicial member will at the lowest level be a member of the High Court bench; in other words, someone who has held or is holding high judicial office.

It is true, of course, that one of the important duties of any Home Secretary, or any government generally, is to safeguard national security. However, that is not the only duty. The relevant consideration is whether we are to be ruled by men or ruled by laws. The purpose of this amendment is to ensure that the decisions of this independent body will be binding. There is no appeal either for the appellant or the Home Secretary. We have absolute confidence in the independent review. The judicial member will be as I have specified. No one lower than the chief immigration adjudicator will sit as the second member. The mechanisms are in place to fulfil our international obligations, as the noble Lord, Lord Lester of Herne Hill, said.

I turn to the observations that he made. I am pleased that he is back in robust health. He spoke of legal certainty in a rather different context. There is certainly one legal certainty; namely, that he will never give up his fight for what he believes to be human rights as regards this jurisdiction. He is a doughty proponent and, judging from his questions this afternoon, a diligent and experienced fly fisherman. He knows that he will not be able to draw me on the precise final form of incorporation of the European Convention on Human Rights because he is a most valued participant in the continuing discussions that are being held. We think that we have the balance right. We have responded to precise observations, questions and criticisms which we thought were of virtue and value. We have dealt openly, and, I hope, responsively and responsibly with the problems that were mentioned on the previous occasion. I am grateful that those were pointed out.

Baroness Blatch

Before the noble Lord sits down, I wish to point out that if I gave the impression—it is possible that I said it—that the commission could disregard the evidence of the Home Secretary, that was not what I intended to say. What worries me is that having had regard to the evidence of the Home Secretary, greater weight could be given to the views of the appellant. I take note of what the Minister has said; namely, that we are ruled by laws and not by men. However, we are ruled by men who administer the law. Therefore it is a matter of human beings at the end of the day. It is not unknown for eminent, highly qualified people sitting in judgment to reach a view that is different from a view that is reached subsequently by another group of highly eminent people. One is not saying that a judgment is wrong, but sometimes two or three sets of highly eminent people can reach different conclusions. The security and interests of this country are crucial to the country as a whole. Therefore I believe there should not be just one judgment; there should be a right of appeal. After all, the appellant has the right of appeal. He has already been judged by the Home Secretary of the day and may then have taken the case to appeal. It seems to me only fair that the Home Secretary of the day should have a right of appeal to the Court of Appeal in the interests of the country as a whole.

Lord Williams of Mostyn

The noble Baroness referred to disregarding evidence. The tribunal will have to balance different views and opposing judgments. Of course laws are administered by men and sometimes by women. What one has to decide is whether a political executive appointee—that is, any government Minister—is to reach a definitive conclusion in areas as grave as the ones we are discussing. We have an international obligation—Chahal has affirmed that. We therefore propose to establish and honour that obligation in our law in the way that I have specified.

On Question, amendment agreed to.

Clause 4 [Procedure]:

3.30 p.m.

Lord Williams of Mostyn moved Amendment No. 2: Page 3, leave out lines 15 to 18 and insert— ("(c) make provision about the functions in proceedings before the Commission of persons appointed under section (Appointment of person to represent the appellant's interests) below, and").

The noble Lord said: I hope it may be convenient if in moving Amendment No. 2 I speak also to Amendment No. 3. They concern the role and appointment of the special advocate. As I explained at Second Reading—I think to the general agreement of the Chamber—national security considerations will necessarily place certain restrictions on proceedings that take place before the commission. The noble Baroness, Lady Blatch, and I have discussed this matter. We disagreed on emphasis rather than the fundamental principle that sometimes national security considerations will involve certain restrictions. One of the restrictions is that the proceedings may have to take place in the absence of the appellant and his or her legal representative.

At Second Reading I drew noble Lords' attention to the fact that the commission would be able to appoint a person to help it in its examination of the security evidence, and in particular to look at that evidence as though on behalf of the appellant. I believe that that was generally welcomed by this Chamber.

We considered further the role of that person and the mechanics of appointment. We reached the conclusion that certain amendments to the Bill are needed. We concluded in particular that to ensure the independence of a special advocate it would be more appropriate if the person were to be appointed by the Attorney-General or his or her equivalent. We also take the view that the role of the special advocate should be to represent the interests of the appellant in those parts of the proceedings from which he and his legal representative are excluded. That will probably mean that he or she will need to be present throughout the proceedings.

Finally—it was a distinct point raised on the last occasion in this Chamber—we believe it important to make it clear that the special advocate will not have a client relationship with the appellant. We do not judge the situation to be workable on any other basis.

The new clause, and the amendment to Clause 4 make, I hope, the necessary clarifications. I commend them to the Committee. I beg to move.

Baroness Blatch

I have one question for the Minister. What is the expected status and legal experience of that person? Does the Minister or the Home Office have any views on that?

Lord Williams of Mostyn

It will ultimately be a matter for the independent professional determination of the Attorney-General. We discussed this issue on the last occasion. Bearing in mind that there are likely to be relatively few appeals per year, the probability is—I say that without in any way attempting to interfere with or bind the discretion of the Attorney-General; such would be improper—that it would be the same sort of vetted person as one who prosecutes for the Treasury in important, delicate, sensitive national security matters. Again, I hope that the noble Baroness will consider that that is a device of practical utility.

Lord Lester of Herne Hill

The Delegated Powers Scrutiny Committee drew attention to the potential width and importance of the rules under Clause 4 and expressed the view that it was admirable and essential that the Minister undertook at Second Reading to make a draft of the rules available to the House, to assist the detailed consideration of the Bill in Committee. I am glad that it expressed that view. I am even more glad that the Minister indicated at Second Reading that that would be done. I have gone carefully through the draft rules. They seem to be an extremely well designed set of rules that seek to be fair without incorporating the full panoply of natural justice as though we were concerned with a criminal trial. I respectfully did not agree with the views expressed by my noble friend Lord Thomas in winding up when he spoke as though we were concerned with a normal criminal trial, and appeared to criticise what was contemplated.

I believe that where national security is at stake, one needs to do the best one can for the individual appellant without sacrificing the overriding interests of national security. One of the reasons that I am so complimentary to Ministers and officials is that they have looked carefully at the Canadian immigration law and practice and procedure which was commended by the European Court of Human Rights. I do not go into much detail, but they have produced a solution which improves upon the Canadian position. It would not satisfy a purist. It would not satisfy someone who believed that nothing less than a full trial with full natural justice would suffice.

However, I believe that the amendment is a fair compromise. I welcome the fact that the amendment makes clear that the law officer will appoint counsel. It makes clear that counsel's job is to represent the interests of the appellant but that the appellant is not to be his or her client. That is important. I believe it inevitable that under the rules some evidence will be produced in the absence of the appellant and that the appellant will not receive full reasons in all circumstances.

I see that the noble and learned Lord, Lord Wilberforce, is in his place. Many years ago, I think in 1970, he adjudicated in the Crockfords Gaming Board case in which the puzzle was rather similar: how much information could one give to someone suspected of having undesirable associations in the world of gambling and the mafia? How much natural justice could be provided? The Court of Appeal of the noble and learned Lord, Lord Wilberforce, made it clear that there had to be fairness but not full natural justice in the traditional sense of a full trial.

I believe that the amendment is entirely appropriate. The draft rules accompanying the amendment will be subject to further debate when they come before the House in their final form for the affirmative procedure. I believe that the amendment is well designed and should have the support of the whole Committee.

Lord Williams of Mostyn

I am grateful to the noble Lord. At Second Reading, I promised to make a first draft of the rules available for our discussion today. I am pleased that we were able to deliver on that promise.

Perhaps I may say how grateful we in the Home Office are to my noble and learned friend the Lord Chancellor and his staff for their work in preparing the first draft so quickly and, as the noble Lord said, so conscientiously.

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Lord Williams of Mostyn moved Amendment No. 3: After Clause 4, insert the following new clause— APPOINTMENT OF PERSON TO REPRESENT THE APPELLANT'S INTERESTS (".—(1) The relevant law officer may appoint a person to represent the interests of an appellant in any proceedings before the Special Immigration Appeals Commission from which the appellant and any legal representative of his are excluded. (2) For the purposes of subsection (1) above, the relevant law officer is—

  1. (a) in relation to proceedings before the Commission in England and Wales, the Attorney General,
  2. (b) in relation to proceedings before the Commission in Scotland, the Lord Advocate, and
  3. (c) in relation to proceedings before the Commission in Northern Ireland, the Attorney General for Northern Ireland.
(3) A person appointed under subsection (1) above—
  1. (a) if appointed for the purposes of proceedings in England and Wales, shall have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,
  2. (b) if appointed for the purposes of proceedings in Scotland, shall be—
    1. (i) an advocate, or
    2. (ii) a solicitor who has by virtue of section 25A of the Solicitors (Scotland) Act 1980 rights of audience in the Court of Session and the High Court of Justiciary, and
  3. (c) if appointed for the purposes of proceedings in Northern Ireland, shall be a member of the Bar of Northern Ireland.
 (4) A person appointed under subsection (1) above shall not be responsible to the person whose interests he is appointed to represent.").

On Question, amendment agreed to.

Clause 5 agreed to.

Schedule 1 [The Commission]:

Lord Williams of Mostyn moved Amendment No. 4: Page 5, line 33, at end insert— ("( ) appointed as chief adjudicator under paragraph 1 of Schedule 5 to the Immigration Act 1971, or").

The noble Lord said: In moving Amendment No. 4, I speak to Amendments Nos. 5 and 6. They accumulatively make a minor change to Schedule 1 to the Bill. As introduced, the Bill provided that the second member of a commission can be or have been a legally qualified member of the Immigration Appeals Tribunal or a special adjudicator; that is, an adjudicator designated to deal with asylum appeals under the 1993 Act. It again reflects a concern raised by the noble Baroness, Lady Blatch. We have had discussions with my noble and learned friend the Lord Chancellor and have established in practice that my noble and learned friend the Lord Chancellor would only deem it appropriate to appoint the chief immigration adjudicator to sit on the commission. In those circumstances, I believe that it is preferable if the Bill reflects that rather than implying a selection from a rather wider range of people. The amendments are designed to achieve that aim. I hope that they are acceptable to the Committee. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 5 and 6: Page 5, line 35, after ("of') insert ("that"). Page 5, line 35, leave out from ("Schedule") to end of line 37.

On Question, amendments agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Appeals: Supplementary]:

Lord Williams of Mostyn moved Amendment No. 7: Page 7, line 2, at end insert— ("Notice of appealable decisions and statement of appeal rights etc .Section 18 of the Immigration Act 1971 shall have effect as if section 2 above were contained in Part II of that Act.").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Remaining schedule agreed to.

House resumed: Bill reported with amendments.