HL Deb 13 December 2001 vol 629 cc1435-49

21 Leave out Clause 30.

22 Clause 31. page 16, line 21. leave out subsection (2).

The Commons agreed to these amendments, but have made the following amendment instead of the words so left out of the Bill:

22A After Clause 35, insert the following new Clause—


At the end of section 1 of the Special Immigration Appeals Commission Act 1997 (c. 68) insert—

"(3) The Commission shall be a superior court of record.

(4) A decision of the Commission shall be questioned in legal proceedings only in accordance with—

(a) section 7, or

(b) section 31(6)(a) of the Anti-terrorism, Crime and Security Act 2001 (derogation).""

The Attorney-General (Lord Goldsmith)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22A.

Two amendments were made on Report relating to judicial scrutiny of actions by the Secretary of State and the Special Immigration Appeals Commission in connection with the certification and detention powers. The clause on "exclusion of legal proceedings" was omitted, as was subsection (2) of the next clause, which confined an initial challenge to a derogation matter to SIAC.

These amendments—Amendments Nos. 21 and 22 on the Marshalled List were accepted by another place yesterday, but in their place the Commons have substituted their own amendments, Amendment No. 22A and Amendments Nos. 22B to 22F on the Marshalled List.

We have had many detailed debates in this House about the appropriate form of judicial scrutiny for the powers in Part 4 of the Bill, during which we in the Government explained our position at some length. Before turning to the amendments presented to this House by another place, I ask the House to recall why SIAC was set up in 1997; namely, to deal with national security cases of the kind it will be considering under the Bill.

In its judgment on the Chahal case in 1996, the European Court of Human Rights stated in clear terms that the traditional remedies of judicial review and habeas corpus did not provide an individual with adequate protection in national security cases. SIAC was constructed specifically to remove those inadequacies. It does this as follows.

First, and most importantly, the legislation creating SIAC provides a mechanism by which both SIAC and a person working on behalf of the appellant—called a "special advocate"—can have full access to the security information which the Secretary of State has seen and relied on in forming his view about the national threat posed by the appellant. That is something that is not possible under traditional judicial review.

Secondly, the membership of SIAC includes a High Court judge to give it the appropriate judicial standing. It also has a senior immigration judge and a lay member. It thus brings a range of relevant expertise to bear on any case.

Thirdly, the Bill provides that when hearing an appeal or review, SIAC will be required to take account of all relevant information, including information which comes to light after the date of the Secretary of State's decision. This ability to take account of new information does not apply to judicial review.

For all the above reasons we have consistently argued that SIAC is a more than adequate body to determine matters under Part 4. And since there is an existing route of challenge to SIAC's decisions on a point of law to the Court of Appeal and to the House of Lords, we have argued that those existing routes of challenge should be used for SIAC's decisions under the Bill.

As is clear from what I have said on previous occasions, I believe that there are, therefore, powerful arguments in support of our position that providing for traditional judicial review of decisions of SIAC would bring no benefits. I indicated my view that it would simply cause confusion as well as adding costs and delay for no good reason. So I am convinced that the policy intention reflected in the Bill as originally drafted was correct—that is, to confine legal challenges to a tried and tested bespoke system of justice which SIAC and the higher Appeal Courts provide. However, I accept that we should do more in the Bill, as we have in debate, to emphasise why this is the case.

That is what the amendments in lieu do. They have been devised following discussions that we have had with the noble and learned Lord, Lord Donaldson of Lymington—for whose assistance I want to express my thanks—and some discussions with the noble and learned Lord, Lord Mayhew of Twysden.

Under these amendments, the routes for judicial challenge of decisions under Part 4 would be channelled in the same way as set out in the Bill as introduced to Parliament, but in addition the amendments make SIAC a superior court of record. The title of "superior court of record" has previously been bestowed on certain bodies, such as the National Industrial Relations Council and the Employment Appeal Tribunal. Having that status means that the decisions of such a body are a matter of public record and they are binding on any inferior courts. In those respects it puts them on a par with the Administrative Court.

Noble Lords will recall that when I last dealt with this matter, I indicated that by virtue of agreement between the Lord Chancellor and the Lord Chief Justice the judges who would be able to hear SIAC cases would be the same judges as those who sit in the Administrative Court—indeed all of them. That puts SIAC on a par with the Administrative Court.

Given the high quality of membership of SIAC, which includes a High Court judge, it is entirely right that SIAC should be conferred with that status as well. It helps to underline the point that a traditional judicial review of decisions of SIAC would simply be inappropriate. It would be a case of one High Court judge sitting in judgment on a body which has three members, including a High Court judge from exactly the same court. I suggest that what is important is that if there is to be an appeal it should be to more senior judges who sit in the Court of Appeal.

The amendments in lieu also describe what we are doing in more accurate terms. It states the manner in which decisions may be challenged—namely, a decision of the Secretary of State may be challenged only in SIAC, and a decision of SIAC may be challenged only by an appeal to the Court of Appeal—rather than referring to the exclusion of legal proceedings. The Bill does not exclude legal proceedings; it does not exclude judicial scrutiny. It sets out where the judicial scrutiny is to take place. I accept that it may be that the terminology previously used in the Bill has confused the picture, so we are grateful for suggestions on how to put that right and to make the position clearer.

I hope that your Lordships will find these amendments to be an acceptable response to the concerns expressed in earlier debates in this House, and will adopt them on that basis.

Moved, That the House do agree with the Commons in their Amendment No. 22A.—[Lord Goldsmith.]

4.30 p.m.

Lord Goodhart moved, as an amendment to Commons Amendment No. 22A, Amendment No. 22AA: 222A At end insert— (5) Rules made under section 5 shall make provision for access to such advice, assistance and representation (including the provision of translation and interpretation services) as the interests of justice requires in connection with proceeding before the Commission, to be funded as part of the Criminal Defence Service established by the Access to Justice Act 1999 (c. 22). The noble Lord said: My Lords, in moving Amendment No. 22AA, I shall speak also to government Amendments Nos. 22A and 22B to 22F.

Amendment No. 22AA has been tabled largely for reassurance. I hope and indeed expect that the Attorney-General will confirm that legal aid and interpretation services will be made available to detainees on appeals and reviews before SIAC and on subsequent appeals.

The matter of substance is what is in the government amendments. A week ago today, your Lordships' House, by a large majority, which included several Members of the Government Benches, rejected the government proposals that were to exclude the right of detainees to apply to the High Court for judicial review of decisions of the Home Secretary and SIAC itself under Part 4 of the Bill. Now the Government have put forward a new amendment that makes SIAC a superior court of record, but continues in effect to exclude judicial review.

I believe that these amendments are mere window-dressing. The distinction between courts of record and other courts is obscure. It seems to me that historically courts of record were those whose orders were inscribed on parchment after they had been made. At present the only effective difference is that courts of record can sentence people for contempt and other courts cannot.

The effect of being a superior court of record, as opposed to a mere court of record, is a little more significant. The law recognises the principle that one superior court of record cannot review the acts of another. By making SIAC a superior court of record, the powers of the High Court to review its activities are necessarily excluded. The provisions of Amendment No. 22B, relating to the questioning of the actions of the Secretary of State only in proceedings before SIAC or on appeal from SIAC, therefore are superfluous because that is the automatic effect of making SIAC a superior court of record.

Amendment No. 22C declares that the derogation matters are the exclusive reserve of SIAC and cannot be questioned by judicial review. Therefore, it restores in that respect the exclusion of judicial review. In the real world the government amendments contain nothing that improves the position of the Bill as it was when it first came to your Lordships' House. Yesterday in the other place the Home Secretary was asked by Mr Robert Marshall-Andrews what was the point of making SIAC a court of record. He replied: It establishes … the position, the status and the record, which can be carried forward".—[Official Report, Commons, 12/12/01; col. 919.] I regard that as a fairly accurate summary of the effect of Amendment No. 22A in that it is essentially meaningless.

In fact, it makes matters a little worse because the effect of Amendment No. 22A is to exclude judicial review, not only from proceedings under this Bill, but also from the existing jurisdiction of SIAC. SIAC will be a superior court of record for the whole of its jurisdiction, which, as already explained, will prevent a review of its decisions by the High Court, whether they are in reference to its existing jurisdiction or to its new jurisdiction under this Bill.

I shall not go into the reasons why judicial review should be retained. Last Thursday they were fully argued, notably by the noble and learned Lords, Lord Mayhew of Twysden and Lord Donaldson of Lymington. Those arguments persuaded your Lordships to vote to retain judicial review over the proceedings of SIAC. I believe that there is no reason to go through those arguments again because they have not changed. Nothing in this amendment represents a real concession or changes the force of the argument that your Lordships heard a week ago. I regret that the noble and learned Lords, Lord Mayhew and Lord Donaldson, and the Conservative Front Bench have accepted what I believe is an entirely illusory olive branch offered to them by the Government. I beg to move.

Moved, as an amendment to Commons Amendment No. 22A, Amendment No. 22AA.—(Lord Goodlicirt.)

The Principal Deputy Chairman of Committees (Lord Brabazon of Tara)

My Lords, the original Question was that this House do agree with the Commons in their Amendment No. 22A inserted into the Bill in place of words left out of the Bill by Amendment Nos. 21 and 22 to which the Commons have agreed. Since when an amendment has been moved to insert the words as printed. The Question is that Amendment No. 22AA be agreed to.

Lord Thomas of Gresford

My Lords, what appears to be so daft about these procedures is that they apply only to people who come to this country without a right of abode and without any right of entry. So these provisions do not apply to citizens of the Irish Republic, nor do they apply to citizens of other countries who have a right of abode in this country. That means that if any such persons are suspected of being terrorists they will not be dealt with under this immigration procedure; the only way in which they can be dealt with is through the normal court procedures of charge and trial.

As secret information will be involved, the usual procedures that take place in courts will be employed; namely, that public interest immunity will be claimed; that the proceedings will be held in camera; and that there will be screens or methods, such as videos, employed to ensure that the identity of witnesses who give evidence is not known. That will happen with anybody except that limited class of people who are in this country but who have no right of abode here.

The procedures distort the SIAC system, which was brought into being for the purposes of immigration, not for the purposes of detention without trial and the apprehension of terrorists. That is what is wrong with them. Because of that distortion, we have the ridiculous situation of the commission being bumped up to be a court of record, equivalent to the High Court, thereby preventing judicial review by a mere piece of window dressing. I respectfully submit that the provisions are a disgrace.

Lord Donaldson of Lymington

My Lords, in a sense I have to declare an interest in the amendments because the noble and learned Lord the Attorney-General was kind enough to engage in wide ranging and long discussions on the problem that had arisen. As I saw it, the problem was that unless we could do something new, we were faced with a highly damaging conflict between the two Houses. If that conflict was necessary, we would have it, but it should be avoided if possible.

As I understand it, the background is that each House was convinced that its approach to the problem was the only way forward and that, if only the other House properly understood what it was at, it would realise that the proposals met all its legitimate aims. Neither House was prepared to compromise because any compromise, by the nature of all compromises, would involve one or both Houses giving up some aspects of the matter which they regarded as of fundamental importance.

Something different was needed—I call it an accommodation, although that may not be the right word—whereby the whole matter was re-jigged in a form that met the full requirements of both Houses.

To explain that a little more, let me outline briefly the attitude of the two Houses. This House was strongly of the opinion that there could be no ouster of the judicial review jurisdiction of the High Court, which is and has been for centuries the ultimate constitutional safeguard against the abuse of power by those in authority. It was certainly not acceptable that, for the first time in history, judicial powers of review should be conferred on a court of inferior jurisdiction. I do not use the word inferior" in any pejorative sense—I am merely referring to a court that is not a superior court of record.

Secondly, this House thought that that refusal did not conflict with the Government's aim of retaining the involvement of SIAC if the actions of the Secretary of State were called into question. If the actions of SIAC were called into question. the High Court would, without doubt, have used the special procedures contained in the 1997 Act to safeguard the interests of the security services arid of national security.

Lord Goldsmith

My Lords—

4.45 p.m.

Lord Donaldson of Lymington

My Lords, the noble and learned Lord should not get too excited. I am describing the view of the House, not his view. If SIAC overstepped the mark, it could and would be dealt with using special procedures by the High Court.

The Government's approach was different. I pardon the infelicity of what they were saying, but their approach was that no court other than SIAC could be relied on to preserve the secrecy of intelligence material provided by the security services if it became concerned with issues other than law. Secondly, they expressed the view that SIAC must be free from all supervision by the High Court, and therefore judicial review must be ousted. That relates to the security issue; the Government were not merely favouring SIAC. The Government's final point was that any other approach could cost lives. It may not be likely, but it could happen.

Against those two conflicting approaches, the noble and learned Lord the Attorney-General and I looked to see what building blocks were available to produce an accommodation. First, there was the building block that no superior court of record can be judicially reviewed. I add anecdotally that the late Mr Justice Megarry was minded to do that when I was president of the National Industrial Relations Court. I rang him up and pointed out that the issue was rather important and he could not do it. He fully accepted that.

Secondly, the High Court is not the only superior court of record. The noble and learned Lord the Attorney-General has mentioned the NIRC and the Employment Appeals Tribunal. I think that I am right in saying that he could also have mentioned the Restrictive Practices Court.

The question then arose: why not make SIAC a superior court of record? Like the High Court, it would be subject to all rulings, in all respects of any jurisdiction that it was exercising, by the Court of Appeal. The High Court, in its ordinary jurisdiction makes rulings that the Court of Appeal can look into and overrule. There is no problem with that. So why not make SIAC a superior court of record? I should not like that to happen on a wide scale. It is an exceptional action, but it is justifiable in this case because of its similarity to the administrative division of the High Court. After all, by arrangements of which we were told earlier, it will always be presided over by not only a High Court judge, but a specialist judge appointed to the administrative court who is skilled in and familiar with judicial review.

It has to be said straightaway that a superior court of record does not automatically achieve judicial review jurisdiction, still less does it become part of the High Court, as I heard suggested on a televised programme of the proceedings of the other place.

The next building block is to confer a limited—I stress that word—judicial review jurisdiction on SIAC in order that it might exercise that jurisdiction in respect of the Secretary of State or anybody else who was concerned. That produces concurrent jurisdiction between the High Court and SIAC.

Given that situation, I see no reason why Parliament should not express the view that, of the two concurrent jurisdictions, one should be concerned with SIAC matters. That is what has been done.

Using those building blocks, we arrive at the situation in which SIAC shall be a superior court of record, given both an appellate and a judicial review jurisdiction. As between SIAC and the High Court, SIAC shall deal with matters arising within its own sphere, as judged by its constitution and the Acts relating to it. SIAC shall be answerable to the Court of Appeal under Section 7 of its own special Act and, in relation to derogation, under Section 31(6)(a) of this Act. That seems to meet the requirements of both Houses without either House having to surrender its strongly held view.

I should mention one other matter. There was some criticism in the other place about the fact that SIAC's appellate jurisdiction would he limited to questions of law. However, as all questions of judicial review on appeal involve questions of law, there will be an unfettered right of appeal in that respect. As for true fact. in my view—although perhaps not in the view of some litigants—one of the glories of the English law is that the idea of a question of law is extremely elastic. For a start, it includes the question of whether there is no evidence of fact; and it may go rather further than that if there is, for example, only a scintilla of evidence.

Your Lordships see where the courts would be going if they thought that there was an injustice that they were being prevented from righting. I have no problem with that.

There is another reason why I have no problem with the proposals. Although I have not done the research that I should perhaps have done, experience teaches me that, when it is a second appeal, there are a number of statutory provisions that limit rights of appeal to questions of law. In this case, the Secretary of State will make what is essentially the original trial decision, after which there may be an appeal to SIAC. The appeal from SIAC to the Court of Appeal is a second appeal. There is nothing very remarkable about that.

I hope that the accommodation approach that I have just outlined will also help to address the point which was raised on Report by the noble Lord, Lord Lester, on satisfying the European Court of Human Rights, and the Council of Europe if it is involved, that we are not departing unnecessarily from the principles that it seeks to support.

Finally, I hope that I shall be acquitted of being a window dresser. I have never been very good at it.

Lord Clinton-Davis

My Lords, on the last occasion when this matter was debated by this House, I agreed with the noble and learned Lord, Lord Donaldson, and I took the view that the Government should make material concessions. I believe that they have done so. I thank those who were responsible for achieving that. It is not the first time that I have agreed with the noble and learned Lord. He has the misfortune of knowing that I agree with him also on this occasion.

I think that it would be churlish not to thank the Home Secretary for listening very carefully to what we had to say. It is not that we want to score a success against the Government. I am concerned about the state of the law, and I know that the noble and learned Lord, Lord Donaldson—who speaks from a rather superior position—is concerned about that too. I thought that there was a terrible anomaly in the current position. I therefore end where I began, by thanking the Government for carefully taking note of what was said in this Chamber and acting accordingly.

Lord Mayhew of Twysden

My Lords, I think that the whole House will be grateful for that expression of helpful opinion by the noble Lord, Lord Clinton-Davis, who spoke very passionately a few days ago on Report. I think that the whole House will also think, as I do. that it was very helpful of the noble and learned Lord, Lord Donaldson, to try so constructively to find an accommodation. I supported him while he was engaged in the process and I am very glad to support him now, for whatever value that may have.

I am also extremely glad that, in consequence, the Government have moved on the issue of judicial review. The question is whether, in their own amendments which were passed last night in another place, they have moved far enough to satisfy the declared objections to former Clauses 30 and 31, which this House removed a few days ago.

What were those objections? I can summarise them very briefly. First, SIAC was not a court but a commission. Secondly, as a commission, it did not have all the power that the High Court would usually have to submit a certification by the Home Secretary or a derogation to judicial review; on one view, it had no power to do that. Thirdly, any irregularity in the commission's procedures could not on complaint be subjected to judicial review, as it could not review itself. Fourthly, to oust judicial review from the exercise of any authority's power that is usually susceptible to judicial review was a bad precedent to set ourselves, and one that was all too likely to be followed in future. Finally, the defence of the country in the present emergency revealed no need for such provision.

How do these amendments measure up? Your Lordships have a very heavy time ahead of you today and tonight, and I do not think that it is your Lordships' wish that I should seek to improve on what has been said by the proposal's principal author and progenitor, the learned and noble Lord, Lord Donaldson. I am very content to adopt, with respect, his comments on his building blocks and the accommodation that they achieve. It was a very helpful intervention and I shall not seek to diminish its beneficial effect by delaying your Lordships.

Lord Lester of Herne Hill

My Lords, the noble and learned Lord, Lord Donaldson, was kind enough to mention my previous comments. The Attorney-General and the House will know that I have consistently said that I am in favour of the Special Immigration Appeals Commission as an independent and impartial tribunal established by law. I have also taken the position, which I believe is the position in law, that the Special Immigration Appeals Commission is bound by the Human Rights Act 1998 to ensure a fair procedure under Article 6 of the convention, as is the Court of Appeal.

It seems that the Home Secretary made a very important statement yesterday evening, but I should like the Attorney-General's confirmation—although I see that his mind is on another matter—that those comments represent the Government's position. The Home Secretary said: SIAC as a superior court of record and administrative court … will provide the equivalent of judicial review"—[Official Report, Commons. 12/12/01; col. 919] Does that mean that SIAC will have all the powers that are held by a normal judicial review court? As I understand it, it was on that basis that the Home Secretary went on to say that Law Lords and "ex-Law Lords"—which I take to be a reference to the noble and learned Lord, Lord Donaldson—were and are satisfied with the proposal.

If it is correct that the Government accept that SIAC—which should be renamed a special immigration appeal tribunal, because that is what it is—is to have all the powers of a judicial review court, and given the Human Rights Act and all its consequences, the position has changed profoundly.

As my noble friend Lord Goodhart indicated, in one respect the amendment now before us removes normal judicial review further than when we last considered the matter. It now applies to deportation orders under the 1997 Act as well as detention and certification. I understand why: it is to produce consistency which would otherwise not be there.

I shall be grateful, therefore, if the Attorney-General will confirm that what the Home Secretary states and what the noble and learned Lord, Lord Donaldson, understands to be the position, really is the position. That will make a considerable difference to my attitude to these matters.

Finally, if my noble friend will forgive me, it follows from what I say that I do not now agree—nor have I agreed during these debates—with what my noble friend Lord Thomas of Gresford said. We look at this through different eyes, perhaps because of our previous legal background. But as a public lawyer I am not as affronted as he is by SIAC; on the contrary.

5 p.m.

Lord Corbett of Castle Vale

My Lords, first, I echo what was said by my noble friend Lord Clinton-Davis. I thank the Attorney-General and the Minister for riot only listening to the voices throughout this Chamber on judicial review, but also for listening to the voices in the other place. And not simply listening, but also finding a way in which to respond.

Secondly, I hope noble Lords on the Liberal Democrat Benches will think carefully about this matter. The accommodation explained by the noble and learned Lord, Lord Donaldson of Lymington, means that no one loses in either this place or the other place. It is an accommodation and an honourable accommodation. The Government should be thanked for it.

Earl Russell

My Lords, speaking from the Liberal Democrat Benches, but for the moment only for myself, I respect the principle of accommodation and I respect the need for it. The question is how far 'the accommodation will be effective.

When I spoke on this issue at Second Reading and in Committee, I had two specific concerns. One was that just expressed by the noble and learned Lord, Lord Mayhew of Twysden: that if we had an ouster of judicial review in one place, we would soon get a precedent which would be regularly repeated; in fact the Government would have set up a young lady of Spain, ready to do it not once, but again, and again and again.

On that we may possibly regard what happened as a draw, which is an honourable result. But the trouble with draws is that they tend to be followed by replays. If, when the noble and learned Lord the Attorney-General replies, he can give us an assurance that this particular draw is one that is not expected to be followed by a replay, I would find that extremely helpful.

My other anxiety, to which the Attorney-General has not yet fully given his mind, is the restrictive nature of the appeal allowed under SIAC procedure as limited by Clause 34(3) of the original Bill—the strict confining of the appeal to the matter of certification; the inability to look at the asylum claim in the round. I noticed in today's The Tunes Mr Ruud Lubbers, of the UN High Commission for Refugees, expressed considerable concern about the growing climate of hostility to asylum seekers throughout the world. That is something of which this country cannot be innocent. So to set up an appeal system which is not able to examine the asylum claim and is therefore unable to examine the proportionality of the certificate, may restrict justice.

I hope that the Attorney-General can tell me, before anyone has to take a decision, whether that elevation of the status of SIAC empowers it to consider material facts other than those in the certificate. I know he will say that it concerns only people who have no right to be in this country. But this is the most unreliable part of the whole of the decision-making machinery of the British Government—and that is saying something. So decisions taken about asylum should not be taken without the possibility of review, and the circumstances which give rise to the asylum claim should be looked at at the same time as the circumstances which give rise to the certificate. What conclusion that should lead to in any specific case one cannot say. But if the noble and learned Lord were able to help me on that point, I would find that very material and be extremely grateful.

Lord Brennan

My Lords, To show particular restraint as to one aspect of this Bill does not involve any lack of resolve in supporting its general objectives. The specific restraint shown by the Government on this occasion is to preserve what many lawyers will feel to be the need for the rule of law in every aspect of national life, including security.

During the course of these debates noble Lords have shown considerable patience and understanding towards lawyers. I shall continue to show that patience towards my learned friends on the Liberal Benches, but not I am afraid on this occasion any understanding. This change in the Bill is welcome for three reasons, which go beyond the rather technical analysis—important though that is—that we have—heard thus far.

The first is that judicial review, as the noble and learned Lord, Lord Donaldson, said, is the ultimate constitutional safeguard between the people and the state and should always be so. That is for our nation. Secondly, by the end of this year or early next year all member nations of the United Nations will report to the Security Council on the steps that they have taken to combat terrorism. This Bill will be looked at as an exemplar for other countries to copy. It is essential that those countries see in it and recognise the value of judicial review as a constitutional and justice safeguard in their systems.

I cannot emphasise that too much. Travelling the world as we lawyers do, we see that it is to this country that countries look to produce just law. This Bill, when it becomes an Act, will be pored over by countries throughout the world.

The last reason why this matter is important beyond the current debate is that it gives protection. In the Second World War, in the United States, noble Lords will remember the internment of any Japanese citizens of America who were Japanese by ancestry rather than by birth. The Supreme Court upheld the internment. But many years later they were given justice. I should like to read a sentence from the judge who acknowledged what had gone wrong. He said, This case stands as a caution that in times of distress and international hostility and antagonisms, the shield of military necessity and national security must not be used to protect governmental action from close scrutiny and accountability [at all times]". This amendment preserves that accountability. For those three reasons I commend the government amendments. Of course it is important for both our Houses to get this Bill through. That is the administrative task. But it is a much greater aspiration that it produces good law. These amendments help that aspiration.

Baroness Buscombe

My Lords, I shall be extremely brief. On behalf of Her Majesty's Official Opposition, I am grateful to the noble and learned Lord the Attorney-General for clarifying the position and for bringing forward their Amendment No. 22A. I am also extremely grateful to the noble and learned Lord, Lord Donaldson of Lymington, and my noble and learned friend Lord Mayhew of Twysden for assisting the Government in developing consensus on this difficult and important matter.

Also, I agree with the noble and learned Lord, Lord Donaldson of Lymington, that we view this approach as an exceptional action and one that we would not wish to entertain other than on that basis. It gives me pleasure to support the government amendment.

Lord Goldsmith

My Lords, I shall deal first with Amendment No. 22AA in the name of the noble Lord, Lord Goodhart, which is an amendment to my Amendment No. 22A. That amendment seeks to put into the Bill particular words relating to legal assistance. Section 5 of the Special Immigration Appeals Commission Act 1997 already provides that, Rules under this section shall provide that an appellant has the right to be legally represented in any proceedings before the Commission or an appeal under section 2". So there is no difficulty. The right to legal advice and assistance is already there.

This Bill also provides that Section 81 of the Immigration and Asylum Act 1999, which relates to grants to voluntary organisations to assist persons who have rights of appeal under that Act, shall be treated as including a reference to suspected international terrorists. The Bill also provides that SIAC may adopt the rules as it considers necessary. I have referred to that before. Therefore, I can assure the noble Lord that a detained individual will have adequate access to legal advice. I can further assure him that adequate arrangements will be made to ensure that the detained individual is fully aware of the disclosable case against him, as indeed is the case in other immigration-related appeals.

I turn to the specific reference that the noble Lord proposes as regards the criminal defence service. I suggest that that is an inappropriate proposed reference for this reason. The Access to Justice Act 1999 identifies the purpose of the criminal defence service as securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation of their interests. Criminal proceedings are defined in the Act and would not include the SIAC proceedings.

The power to fund the criminal defence service rests not with my right honourable friend the Home Secretary, but with the noble and learned Lord The Lord Chancellor. I hope that the assurances that I have been able to give will at least satisfy the noble Lord as to the substance of his proposed amendment. It does not appear to us that there is need for any of it to appear on the face of the Bill.

I turn briefly to Amendment No. 22A. I may have misunderstood the noble Earl, Lord Russell. There is no question of a replay in the sense of another place disagreeing with this amendment because it has already been accepted there and brought forward to us. If the amendment is now accepted, that is the end of the matter.

I am very grateful to those noble Lords who spoke in this debate, particularly my noble friends Lord Clinton-Davis, Lord Corbett and Lord Brennan. I acknowledge their remarks and thanks to my right honourable friend the Home Secretary. I have already given—but I do so again—my thanks to the noble and learned Lord, Lord Donaldson of Lymington. He has clearly explained why this is a justifiable amendment to make and why it is a sensible way of achieving the ends that both Houses want.

I come now to the dissenting voices of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. The noble Lord, Lord Lester, said that he did not agree with the noble Lord, Lord Thomas of Gresford. I have not agreed with the noble Lord, Lord Thomas of Gresford, throughout the debate on this clause. He has consistently taken the view that it is somehow possible to use the public interest immunity route in order to deal with the problem. I have consistently said that that is not a way for getting the matter before the court.

5.15 p.m.

Lord Thomas of Gresford

My Lords, is not that the way in which people who have a right of abode in this country or citizens of the Irish Republic will have to be dealt with because they will not come under this procedure?

Lord Goldsmith

My Lords, this procedure does not apply to them, so the issue does not arise. There is no point in continuing the debate with the noble Lord, Lord Thomas of Gresford, because we will continue to disagree. I am grateful that the noble Lord, Lord Lester, has made clear his agreement, as he has done previously, with the fundamental position that SIAC is appropriate.

Lord Lester of Herne Hill

My Lords, will the Attorney-General deal with the specific question that I put to him, which will determine my attitude? Is there any difference between what is now proposed and judicial review?

Lord Goldsmith

My Lords, the noble Lord must he patient. I am coming to that. The noble Lord, Lord Goodhart, described it as window dressing and not of the real world. The real world is the one that we were in where it was recognised by noble Lords in this House, with very few exceptions, that separate judicial review was important for one reason only, and that is the symbolism and precedent that it would give rise to. The noble and learned Lord, Lord Mayhew of Twysden, and others have spoken of how that precedent is not there. I never thought that there was an issue. I always believed that we were sending a clear message that there was to be judicial scrutiny of these decisions, but I was in a minority on that matter. I am grateful to noble Lords who have made the point. I make it very clear that no precedent is being set. There is no statement by this country that we are against judicial scrutiny, but quite the opposite. We are saying that these decisions, difficult and sensitive though they are, will be subject to full review by a body which is a superior court of record.

I turn now to the point made by the noble Lord, Lord Lester of Herne Hill. I have also said in the past that I could not see areas where something could be done under judicial review which could not be done by SIAC. I invited noble Lords to point out where I was wrong. That remains my position. I believe that SIAC will be able to take everything into account which would have been considered on judicial review and more. I have made the point before that SIAC will be looking at the situation at the date of the hearing and not simply at the date of the certificate. Therefore, it is not simply a case, as the noble Earl, Lord Russell, asked, about looking at the grounds in the certificate because SIAC is entitled to take account of matters which have taken place subsequently. Given that and the fact that there is a clear right of appeal to the Court of Appeal on a question of law, I hope that I have adequately confirmed that there is nothing that could be done on judicial review by way of dealing with the certificate of the Secretary of State that SIAC would be unable to do.

Lord Goodhart

My Lords, as regards our own amendment, I am happy to accept what the noble and learned Lord, the Attorney-General, has said. We shall not press it. Turning to the substantive amendment and the group of Government amendments, we are not persuaded by what the noble and learned Lord has said. I am interested and somewhat surprised to note that the Conservative Front Bench in the other place abstained on the vote last night and it is now proposing to vote with the Government. In that case we do not see any point in seeking to divide the House, but the fact that we will not do so is not to be taken as representing any agreement by us to the proposals which have been put forward. I beg leave to withdraw Amendment No. 22AA.

Amendment No. 22AA, as an amendment to Amendment No. 22A, by leave, withdrawn.

On Question, Motion agreed to.