Lords Sitting of 29 November 2001

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Blackburn): The LORD CHANCELLOR on the Woolsack.

Higher Education: Funding
Lord Hannay of Chiswick Lord Hannay of Chiswick asked Her Majesty's Government:
How universities can contribute effectively to their review of public spending in higher education without knowing the outcome of their review of student finance.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, there are always uncertainties in public spending rounds. Universities must make the best case that they can on the information that is available to them. But they can rest assured that the Government are alive to the links between student finance and institutional funding and will consult widely with them.
Lord Hannay of Chiswick: My Lords, I thank the noble Baroness for that reply. I declare again my interest as pro-chancellor of the University of Birmingham. Is she aware that an income stream of £350 million a year is involved in the issue of student finance? How can universities participate effectively in the consultative process on the spending round if they do not know whether or not the funding is there for the future?
Baroness Ashton of Upholland: My Lords, I am aware of the funding stream. The estimate at the moment is £343 million. It will be for the Government to ensure in their proposals that they have demonstrated the link between that figure and the needs of universities. There is an understanding in the department of the importance of this income stream. The current review will be alive to that and will take it into account.
Baroness Blatch: My Lords, is the noble Baroness suggesting that in the Chancellor's recent Pre-Budget Statement there is an open-ended commitment to whatever is the outcome of the review, or have parameters been set down within which the review has to report? What input have the universities had to date with officials in that review process?
Baroness Ashton of Upholland: My Lords, as the noble Baroness is aware, the review will continue until next year. It is important to ensure that the review works closely with all interested parties in determining what amounts of money are available to it. I am not
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aware of parameters as such, but of course officials within the department work closely at all times with other officials in government, not least with the Treasury.
As to whether universities have worked with the Government on the issue of the review, Universities UK and other organisations have had meetings with officials and have made representations. As noble Lords will be aware, when the review is ready to report it will consult widely with the universities and there will be many opportunities at that stage.
Baroness Sharp of Guildford: My Lords, I agree that this is a very important stream of funding for universities. But is the Minister aware that the extra income yielded by the imposition of tuition fees resulted in no net increase of resources to universities because of cuts elsewhere? Can we therefore believe the Government when they say that they will consider such an income stream? Is it not irrelevant now? Is not what we want a real promise from the Treasury that there will be a net increase in resources for universities in the next spending round?
Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Hannay, was searching for an assurance that the Government are aware of the £343 million and its relationship to the overall strategy that universities are pursuing in terms of their funding. I believe that I have given that assurance. I am sure that noble Lords will come back to me if I have not.
The noble Baroness asks about overall funding for universities. It is very important that universities put forward their views and proposals for the spending review and that they are evidence based.
Lord Pilkington of Oxenford: My Lords, is the Minister satisfied that English professors earn so much less than their contemporaries in other parts of the world? In consequence, they go to other countries. In the funding review will the Government bear in mind that £46,000 a year is not enough for the Regius Professor of History at Cambridge?
Baroness Ashton of Upholland: My Lords, the issue of payments to professors and other teachers—however one wishes to describe them—is very important. I am fully alive to the issue in terms of ensuring that we continue to have lecturers, professors and other staff of the highest quality in our universities.
Baroness Walmsley: My Lords, can the Minister assure the House that the Government will implement all the proposals of the Bett report and that they will be properly funded?
Baroness Ashton of Upholland: My Lords, I am not in a position to do that. It is very important for the Government to consider all the proposals and to put

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forward recommendations, proposals and so on to universities, so that we can move forward on student finance and funding in a coherent way.
Lord Roberts of Conwy: My Lords, can the noble Baroness confirm that the Government's top priority in higher education is increased access to it?
Baroness Ashton of Upholland: My Lords, that is an important aspect of the Government's priorities. If I said that it is a top priority other noble Lords might say that the top priority should be ensuring that our universities are funded and we could be here potentially for some time. It is important that we widen access. Every noble Lord who has ever spoken on the subject agrees with that. We want to see the maximum participation for those for whom it is the appropriate pathway.
Lord Burnham: My Lords, would I be right in assuming from the reply given to my noble friend Lord Pilkington that the Government do not intend to do anything about the salaries of senior professors?
Baroness Ashton of Upholland: My Lords, the noble Lord would not be right in assuming that. I am simply trying to ensure that when the review reports and when the comprehensive funding review reports, all the factors that noble Lords have raised will be taken into account and that there will be opportunity to consider these issues. Of course they are important. I would not suggest for one moment that they are not.

London: Emergency Response Co-ordination
3.7 p.m.
Lord Dixon-Smith Lord Dixon-Smith asked Her Majesty's Government:
Who is responsible for considering the possible consequences of major emergencies or acts of terrorism within London and for preparing plans to respond to such events.
The Minister of State, Home Office (Lord Rooker): My Lords, the London Resilience Sub-Committee of the Civil Contingencies Committee is chaired by the Minister for London. It is engaging all the capital's responsible organisations in a comprehensive review of their plans to respond to and manage the consequences of such events.
Operationally, the co-ordination of any response to a major incident in London is the responsibility of the Metropolitan Police Service.
Lord Dixon-Smith: My Lords, does the Minister agree that inevitably in a conurbation there are many bodies and organisations which properly have a role to play in the preparation of an emergency plan to deal with a major disaster? Can he tell me how all these plans are co-ordinated? The House will be all too
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familiar with the cliché of the committee that was asked to design a racehorse but which came up with a camel. Is there one man somewhere with absolute responsibility to pull all the plans together and present a unified course of action to the committee that he has just mentioned, as there is in most other parts of the country?
Lord Rooker: My Lords, I have nothing different to say from the two previous occasions when I answered exactly the same issue in a Question on the 5th and on a Motion on the 7th of this month. The Civil Contingencies Committee is chaired by the Home Secretary. It has three sub-committees: the London Resilience Sub-Committee, the UK Resilience Sub-Committee and a sub-committee that deals with chemical, biological, radiological and nuclear issues which is also chaired by a Home Office Minister.
From an operational point of view, the Metropolitan Police are in charge. There is good co-ordination. All this is being reviewed and has been reviewed constantly since September 11th. There are operational exercises. They were taking place before September 11th. The role of the Mayor for London is to inform Londoners of the issues, which he is doing. He works in co-operation with the London Resilience Sub-Committee. We are satisfied with the arrangements but we are constantly reviewing them. Nothing is perfect. That is why they are being constantly reviewed.
Lord Tope: My Lords, I know that the Minister is aware, because he has told us before, that most of the actual emergency planning in London since 1973 has been done by the London Emergency Services Liaison Panel, known as LESLP to its friends. As part of the Government's review of the arrangements, are they considering putting LESLP on a more sound basis than at present in terms of both its organisation and its funding? At present, it relies largely on the good will of the organisations involved.
Lord Rooker: My Lords, I know of no problems in that respect. The London Emergency Services Liaison Panel—I shall not try to pronounce the acronym—includes the Metropolitan Police, the City of London Police, the British Transport Police, the fire brigade and the ambulance service. It has produced plans to deal with some potentially serious issues: chemical, biological, radiological and nuclear hazards. It has issued guidance to local authorities and emergency planning officers. A sub-committee of the Cabinet Civil Contingencies Committee also deals with the issue.
Resources will always be an issue because many organisations with their own budgets are involved, but they are working to a central aim and are co-ordinated from the centre. The Government are in charge of ensuring that co-ordination.
Lord Hodgson of Astley Abbotts: My Lords, did the Minister have a chance to see the recent television programme on transporting nuclear waste from Essex

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power stations through north London for reprocessing elsewhere? The programme revealed that, although the train is monitored extremely carefully while in progress, it is subsequently parked at Willesden Green sidings for two to three hours—and sometimes overnight—completely unguarded. Is that state of affairs satisfactory?
Lord Rooker: No, my Lords, it is not. I did not see the programme, but I trust that the noble Lord will be in the Lobby next week, if need be, to vote for the minor technical change made to the UK Atomic Energy Authority Constabulary in the Anti-terrorism, Crime and Security Bill, to ensure that that issue is dealt with.
Lord Carr of Hadley: My Lords, as someone who was once Home Secretary, I should be interested to know who—if any—is the particular Minister responsible for overseeing the co-ordination to which the Minister referred a few moments ago.
Lord Rooker: My Lords, I pay tribute to the work that the noble Lord did as Home Secretary. The Minister responsible is the Home Secretary. David Blunkett chairs the Cabinet Civil Contingencies Committee, which plays the central co-ordinating role.

National Road Safety Strategy
3.12 p.m.
Lord Faulkner of Worcester: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as the new president of the Royal Society for the Prevention of Accidents.
The Question was as follows:
When Her Majesty's Government expect to make a statement on the implementation of the national road safety strategy.
Lord Filkin: My Lords, the Government's road safety strategy sets challenging targets for massive reductions in road deaths and serious injuries by 2010. Regular reports are posted on the department's website. The latest, for the period ending September 2001, has now been published.
Lord Faulkner of Worcester: My Lords, I am grateful to my noble friend for that reply. Is he aware that on page 31 of the strategy document, it states:
"if we fail to persuade drivers not to use mobile phones while driving, we will review the case for taking specific legislation"?
How long will it take for the Government to be persuaded? If any of your Lordships go into Parliament Square they will see scores of drivers with one hand pressing a phone to their ear and the other attempting to control a motor vehicle. Given that a Private Member's Bill in another place deals
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specifically with the subject, would not the simplest thing be for the Government to take it over and get it passed quickly?
Lord Filkin: My Lords, I shall start by setting out the clear target that the Government have set themselves by 2010, which is to reduce road deaths by 1,500 lives a year and serious injuries as a result of road accidents by 15,000.
The Government are therefore making judgments about the best way to achieve those remarkably serious targets. The evidence so far—supported by the Association of Chief Police Officers—is that existing road traffic legislation is adequate and provides sufficient powers for the police to deal with offences in that respect. They have power to prosecute for improper control of a vehicle.
Lord Astor of Hever: My Lords, I declare an interest as a former president of RoSPA, and welcome the noble Lord, Lord Faulkner of Worcester, to his new position. Will the Minister seriously rethink that judgment? Evidence from coroners' inquests and police investigations shows that the use of handheld mobile phones causes fatal accidents.
Lord Filkin: My Lords, the Government's position is quite clear: the use of mobile phones in cars should not take place. It is inadvisable and drivers would do much better to desist. The same goes for hands-free use: that potentially distracts the driver from the road traffic situation. However, enforcement of a ban would not be simple, especially as people could easily switch to hands-free devices, for which there is still evidence of risk. The police can prosecute if there is an accident or if they believe that there is danger to the control of a vehicle.
Baroness Hayman: My Lords, is my noble friend aware that I recognise his Answer on the adequacy of existing powers, having given it myself some years ago? Is he comfortable with the present degree of enforcement? Many of us share the concerns that have been expressed about the dangers inherent in such practice, and the legislative cover does not seem to be stopping it.
Lord Filkin: My Lords, noble Lords will be deeply surprised to learn that the Home Office figures are not disaggregated in that respect, so we do not know exactly what are the figures for prosecutions, although the matter will be kept under review.
We must consider the matter in the context of my original Answer. Our commitment to reduce deaths and serious injuries is strong. There is a widespread programme of action to achieve that, which I shall not bore the House by describing now. People are clearly advised not to use mobile phones. They will be prosecuted if by doing so they appear to cause an accident. But there are many other actions that, on the evidence before the Government, will lead to significantly greater reductions in deaths and serious injuries.
Baroness Scott of Needham Market: My Lords, the Government's road safety strategy highlights the fact that single-carriageway rural roads are the most dangerous class of highway in the country. In the light of that, what progress are the Government making to implement the review of rural speed limits promised in the Transport Act 2000? It is now almost a year since that Act was passed, and people are dying in numbers that would simply not be tolerated from any other cause.
Lord Filkin: My Lords, the Transport Act 2000 committed the Government to consider the development of rural road hierarchies for speed management purposes. If I recollect correctly, the noble Baroness had some part in that Act.
Yesterday, the Secretary of State laid before both Houses the report of an independent working group established to consider the practicability of differential speed limits throughout rural areas. The Government will be considering the implications, practicability and cost of such a scheme during the coming months.
Lord Tomlinson: My Lords, may I encourage my noble friend to improve his background reading on the subject of hand-held telephones by reading the Private Member's Bill introduced by my noble friend Lord Davies? If he read the debate on that Bill, when an excellent case was made in this House that was warmly regarded, he might have some stronger words to encourage the Home Office to produce better briefing for Answers in future.
Lord Filkin: My Lords, I am grateful for my noble friend's advice on this occasion—as I am sure I will be in future. There is a danger of my being boring by repeating what I said earlier.
Noble Lords: Hear, hear!
Lord Filkin: My Lords, I was confident that the House would agree with me on that. The point about statistics for prosecutions is noted, but whatever the figure, we are still left with the challenge of whether a ban is the priority—whether it is effectively enforceable or whether we would just feel better by passing legislation. Legislation is usually relatively easy to pass—if not this week—but the Government must consider whether it will be efficacious.
Earl Ferrers: My Lords, is the odious habit conducted at present—certainly by Westminster City Council—of finding every side road, digging it up at great expense and putting a huge great hump in it, supposed to be helpful in reducing road accidents? If so, will the Minister consider that it is greatly to the detriment of those travelling in and driving cars?
Lord Filkin: My Lords, I must declare two interests as a resident of Westminster and having the privilege of being a neighbour of the noble Earl. At times, I share his frustrations, but I shall be careful what I say from the Dispatch Box.
Lord Stoddart of Swindon: My Lords, is the Minister aware that the Thames Valley Police Authority
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recently introduced a scheme offering a reward of up to £500 to people who are prepared to inform on relatives, neighbours and friends who drink and drive? Is he in favour of that scheme and is it likely to be extended? How can confidentiality be assured in such circumstances, because if it is not I can see a great deal of fighting going on in streets and homes?
Lord Filkin: My Lords, the noble Lord, as a resident of Berkshire, makes an interesting point. It is clearly an operational matter for the Chief Constable. The Government's commitment is to continue the reduction in cases of drink driving which has been experienced during recent years. As noble Lords will know, the number of cases has declined from some 30,000 to some 18,000 in the current year.
Lord Peyton of Yeovil: My Lords—
Baroness Thomas of Walliswood: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, it is the turn of the Liberal Democrats.
Baroness Thomas of Walliswood: My Lords, does the Minister agree that if British drivers stuck to the speed limit as it appears in the middle or at the end of a road, there would be no need for humps and bumps in the road and there would be a great reduction in local authority expenditure on roads and bumps?
Lord Filkin: My Lords, I agree that if that were the case we would have a significant reduction in the number of road humps and in deaths—but we would probably already be in paradise if those circumstances had come about. To be serious about the issue, some 1,100 deaths and 12,000 serious injuries each year are predominantly associated with excessive speed. One hopes that in time we shall reach the situation that has occurred in relation to drink driving; that speeding is no longer seen as socially acceptable.
Lord Peyton of Yeovil: My Lords, arising from the question asked by my noble friend Lord Ferrers, does the Minister recall that his noble friend Lord Macdonald, when happily in charge of transport, took powers on behalf of the Government to deal with the menace of people who persist on digging holes in the road without caring a jot for the inconvenience and danger they cause to others? I want to know whether the Government have ever used those powers and to express the hope that they will.
Lord Filkin: My Lords, I am speaking from recollection rather than from recent reading, but I understand that the Government have moved forward in trying to make it possible to introduce penalties when operators exceed the nominated time periods

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they have set for roadworks. I very much hope that local authorities will be extremely vigorous in enforcing those penalties when operators do so.
Viscount Simon: My Lords, is my noble friend aware—I suspect that he is—that research indicates that one's attention is adversely affected by using a mobile telephone, irrespective of whether it is handheld or not, for up to 10 minutes after the conversation has concluded? I go out with various police forces on traffic patrol up to three dozen times a year. Is the Minister aware that every single officer at the sharp end wants to see specific legislation to ban the use of mobile telephones while driving?
Lord Filkin: My Lords, I am aware that such use affects the attention span of the driver. That is why the Government's position is quite clear that people should not use mobile telephones. Many other things happen within cars which also affect the attention span of drivers—and I shall not develop the point. However, as regards some such issues, one is dealing with the balance of risk.
We are aware that some European countries recently introduced mobile telephone legislation and we shall monitor the situation very carefully in order to see whether it informs us, in particular in relation to enforceability and impact.

Downview Prison
3.24 p.m.
Lord Dholakia Lord Dholakia asked Her Majesty's Government
What are their views on the report from the board of visitors on Downview prison.
Lord Rooker: My Lords, we welcome the board's report which acknowledged a lot of good work at Downview and we will be giving it our full response shortly. We note particularly its concerns about the speed of the prison's change of role to a women's prison. That was necessitated by a steep rise in the female prison population and work is under way to address the board's concerns.
Lord Dholakia: My Lords, can the Minister explain why, when the crime rate is going down, the prison population is at its highest ever at more than 68,000? That includes 4.000 women, which is also a high figure. Does the Minister subscribe to his own independent Board of Visitors' report that Downview prison, which had the best drug rehabilitation programme, is now in a shambles; that inmate facilities are inadequate; that staff do not receive adequate training; and that there have been four suicide attempts?
Will the Minister explain where within the system we have produced a discrepancy which imprisons a large number of women offenders who overall commit less crime and yet are subjected to custodial penalties?
Lord Rooker: My Lords, it sounds like a paradox, but the answer to the noble Lord's first question about why, when crime figures are going down, the prison population is going up is that the one may be following the other. If there are persistent offenders who have been caught, they go to prison. In this particular case there has been a phenomenal increase in the number of women sent to prison in the last period. It is currently some 4,050—that is the figure I have for Monday this week. A combination of factors is responsible for that: there is no one single factor. Many of the offences are drug-related.
There is a difficulty and we are having to increase the prison estate for women. However, the Government do not have a fixed number of people who should be in prison. The courts are doing the sentencing and we have requested that, where possible, those who do the sentencing look at alternatives to prison. We are seeking alternatives to prison. We have to be very careful about, for example, home detention curfews. We have asked governors to look at them and there is a risk involved, it is true. Nevertheless, there has been a large increase. Faced with that, the Prison Service had no choice but to make more emergency places available for women in prison. It will not allow overcrowding but it allows less overcrowding for women than for males. That urgent action has to be taken.
I do not accept that Downview prison is a shambles. There have been difficulties and they are being addressed. We regret the problems caused for the men who were moved out of there because it was a training prison. However, it was the best available prison in the best available location to meet the needs of the increase in the number of women prisoners.
Lord Acton: My Lords, does my noble friend recall that the Lord Chief Justice, in an address to the Prison Reform Trust on 31st January this year, said:
"There should be a Board responsible for women in the criminal justice system. Its responsibilities in relation to women should be similar to that of the Youth Justice Board. It should regard its primary responsibility to be to contain the growth of the women prison population"?
In view of the alarming rise in the number of women prisoners, should not that weighty recommendation be implemented with the greatest possible speed?
Lord Rooker: My Lords, I do not know the details of that. It sounds an incredibly sensible suggestion to me but I suspect that somewhere it has been sat on. I shall have a problem for giving that answer because it sounds so sensible.
I myself have visited only one women's prison since I have been at the Home Office—it was an unannounced visit—and I came away wanting to bulldoze the place down. I was depressed because of the conditions there, the quality and lack of activity and other things, and because of what some of the people there told me about what they were in there for. That comes back to those who do the sentencing. Within the last 12 months a judge found it necessary to send a thalidomide quadriplegic to prison over arguing

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about a debt for a couple of hundred quid. There was a terrible problem when that female arrived at the prison. What was the judge thinking about when he did that, I ask myself. It is that kind of issue that we ask the sentencers to think about. Is sending someone to prison the best possible sentence, bearing in mind the circumstances of the case?
Lord Elton: My Lords, clearly the Minister is in touch with real life. Can I ask him to encourage his department to examine how much money is spent on preventing young children entering into crime before they are old enough to do so? I include young women in that, and refer in particular to those young people excluded from school. Does the Minister agree that, if a larger budget were directed to addressing those issues, less would need to be spent by the Home Office, which would be encouraging for his department?
Lord Rooker: My Lords, the noble Lord is absolutely right. I cannot give the figures off the top of my head, but many programmes aimed at reducing the numbers of young offenders have been put in place by the Home Office, working in co-operation with local authorities and other bodies involved in the criminal justice system. We seek to cut out the problem at the earliest possible age because we know that such intervention can have a massive impact in later life. As I have said, numerous programmes have been put into place to that effect. Over time we hope that they will be successful; only time will tell. I can assure the noble Lord that we do not have to bring forward crime prevention programmes for young people. They are actively under way already.
Lord Quirk: My Lords, to return to Downview prison, warts and all, is it not the case that the prison has had a quite exceptionally good record in respect of education, training and rehabilitation? First, can the Minister therefore reassure the House that, when it is rerolled as a women's prison, that culture will be preserved and, indeed, enhanced for the benefit of its new occupants? Secondly, will the males being relocated have continuity in the educational provision that they have enjoyed at Downview?
Lord Rooker: My Lords, the noble Lord is absolutely right in his latter point. Downview was a category C training prison for men and it was extremely successful. It is true that we have disrupted the training programmes of some of the inmates. I understand that most, if not all, of the prisoners have been relocated to institutions of their choice and have been able to get their programmes under way. We want to run, if you like, a successful women's prison at Downview. It would be better if we did not have to have the prisons, but we must have them. We want Downview to be a successful institution, both for the convicted prisoners and for those on remand.
New management has been put into Downview to oversee the transition. It is not easy to effect a transfer. We have recently announced that Buckley Hall near
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Rochdale is also being rerolled to become a women's prison. We have to make available greater capacity, otherwise we shall end up with overcrowding in women's prisons, which would destroy all the programmes aimed at education and so forth that need be carried out in prison.

Anti-terrorism, Crime and Security Bill
3.32 p.m.
Lord Rooker Lord Rooker My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Rooker.)
On Question, Motion agreed to.
House in Committee accordingly.
[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (Lord Brabazon of Tara) in the Chair.]
Clause 21 [Suspected international terrorist: certification]:
Lord Corbett of Castle Vale Lord Corbett of Castle Vale moved Amendment No. 103A:
Page 10, line 38, leave out "suspects" and insert "believes"
The noble Lord said: I am pleased to find my noble friend on the Front Bench in such a robust and realistic frame of mind. I hope that that will be reflected in his response when we come to the end of the debate on the amendment.
The amendment addresses a small but important point. Under Clause 21, foreign nationals suspected of being international terrorists can be imprisoned indefinitely on the basis of a judgment made by the Home Secretary. The Bar Council and the Criminal Bar Association have argued—I agree with them and I hope that the Committee will do so as well—that suspicion is a very low threshold indeed and forms an unsuitable basis for taking such an important decision.
Although the Government have amended the clause to include the test of reasonableness, no obvious good reason has been given as to why indefinite imprisonment may be exercised by the Home Secretary in one paragraph of the subsection on the basis of belief, while in the other it will be exercised on the basis of suspicion. It may be that the Government will argue that "belief" and "suspicion" are interchangeable and mean the same. Indeed, in Clause 25(2) and Clause 26(4) concerning appeals, both words are used one after the other, in both cases. That may be due to careless drafting, but if both words are said to have the same meaning, why are both being used? Logically, it would follow that if both words mean the same thing, only one word would need to be used. However, I do not believe that that is the case. I agree with the Bar Council that suspicion can be more lightly based than belief. I invite the Government to agree with me. I beg to move.
Lord Goodhart: Two of my noble friends and I have added our names to the amendment. We support it for

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the reasons given by the noble Lord, Lord Corbett. It is a point which has been pressed by the Criminal Bar Association and I must say that I believe that the association is right. It is possible to suspect that something is true without believing it to be true. Suspicion is the stage reached before arriving at belief. It is appropriate that the test here should be one of belief rather than suspicion.
Lord Rooker: I am grateful to my noble friend and to the noble Lord, Lord Goodhart, for raising the issue. It gives the Government an opportunity to put on the record the fact that there is a difference between the two words used here.
If there were a reasonable belief that someone was an international terrorist, then under the terms of the Terrorism Act, the police already have powers. For that reason, the clause as drafted is designed to cover cases where insufficient admissible evidence can be brought forward that points to a person being a terrorist. Indeed, that is the point of the clause. Our aim throughout has been that our first priority would be to prosecute alleged terrorists; secondly, if we cannot prosecute them, to remove them; and thirdly, failing the opportunity, wherewithal and appropriate circumstances to remove such people, to detain them. Those are the three routes of action. If there was a reasonable belief, then we will have in place the powers to act. It may be that in the other clause the powers are used for the same purpose, but in this respect, I should say to my noble friend that it is not the same.
I hope that I may take the opportunity in this the first debate of the day to widen my response to the amendment a little, in the hope that it may help our discussions during the remainder of the day and possibly the night. Since the publication of the Bill, the Government have continued to review it. We are keen to listen to Parliament and accept that the Government do not always know best. As Members of the Committee know, we made some changes to the Bill just as it was leaving the other place, such as the five-year sunset clause for the detention powers contained in Clauses 21 and 23. Later today I shall move amendments to the Bill to narrow the definition of people having links to international terrorists. I refer to Amendments Nos. 107 and 110.
Perhaps I may share with the Committee two further possible ways to make improvements. One will be general to the Bill while the other will be specific to the issues that we are due to debate today. At a recent meeting held in the Moses Room, during which noble Lords from all parties and the Cross Benches gathered to question the Home Secretary, the noble Lord, Lord King of Bridgwater, put forward a suggestion for a procedure to consider the operation of the Act—as I shall refer to it—after it has passed through Parliament, in light of the shortened parliamentary time given to the process through to Royal Assent. We have given some initial thought to the noble Lord's suggestion, but we have made no decisions. I am not willing to announce any decisions and that is not the point here.
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We have already placed in the Bill a review of Clauses 21 to 23 to be undertaken by a reviewer, the noble Lord, Lord Carlile of Berriew. After 15 months he will review the legislation and make a report. After that, an annual review of the operation of Clauses 21 to 23 will take place. Due to the swift passage of the Bill through Parliament, we are thinking—I seek to share thoughts with Members of the Committee for consideration over the days to come—of introducing a procedure whereby, after a period, Parliament itself could review the operation of the whole Act.
It might be suitable to institute such a review at the point of the first statutory review of Clauses 21 to 23 to be undertaken by the noble Lord, Lord Carlile, following which he will carry out that review on an annual basis until the sunset point is reached. We do not have in place any mechanism, but given the sensitive nature of some areas of the Act, as it will become, there might be a case for a reasonable-sized group of Privy Counsellors drawn from both Houses to conduct a review during the period. It would report to the Home Secretary on the operation of the entire Act. We would seek a guarantee from the business managers of both Houses that that report would be debated in a full day's debate. Clearly it would be necessary for such a group, if it was formed, to have access to all the information they would need—hence the requirement that they should be Privy Counsellors. I leave that suggestion with Members of the Committee to mull over.
We do not see a need to put forward an amendment to the Bill because I believe that, if we were to take this route, a parliamentary Statement placed on the record in Hansard should be sufficient to operate that kind of external review. The external review is purely to take account, after a period and on a one-off basis—I say after 15 months because that would tie in with the review of the noble Lord, Lord Carlile—of the fast-tracking of the Bill through Parliament.
A more specific point that I wish to raise concerns the appeal timetable for a suspected international terrorist to have his or her detention reviewed by the Special Immigration Appeals Commission. We are firmly of the belief that six months is a reasonable period in the first instance. Under Clause 26(3) it is possible to have the detention reviewed at any time due to a change of circumstances, but we believe that, after the first six months review, the detention should be reviewed automatically at three-month intervals. We will therefore bring forward an amendment to that effect at a later stage.
I hope that the Committee will accept that we are prepared to listen and to change where we can and where we can keep the aims of the legislation in the direction that we want. In that spirit, I hope that we can proceed to consider the remainder of Clause 4 in the normal constructive way of the House.
Lord Goodhart: Before the Minister sits down, perhaps I may ask him whether he agrees that there are many cases in which a reasonable belief could arise in circumstances where no prosecution is possible for—instance, where it is based on inadmissible evidence or

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where it is a belief on the balance of probabilities but falling short of beyond reasonable doubt. In those circumstances, is the Minister saying that there can be detention on the basis of a suspicion which falls short even of the balance of probabilities?
Lord Rooker: I do not think that the argument is about that point. The noble Lord's question would probably be best answered in the debates on the appeal procedure. The person will have the right to appeal. The certificate will have to be reviewed by SIAC. The Home Secretary will grant a certificate under Clause 21(1) on the basis I have outlined—that is, if he suspects that the person is an international terrorist as defined by the Bill—subject, of course, to the amendments that I shall be moving later in the debate.
Lord Elton: As the Minister has referred to his response to the suggestion of my noble friend Lord King—which I supported and debated with him—can he tell the Committee how this idea will be taken forward by the Government? First, is it likely to be a concrete proposition before we arrive at Report? Of course, one of the Government's objects must be to reassure the House as to the minimal risk of passing ill digested legislation.
Secondly, what thought has been given to what the product of such a review might be? Two days—one in each House—discussing matters of interest will be important, but the importance diminishes if there is no result from that except a sigh of, "Oh dear, it's not working as well as we hoped".
Lord Rooker: I have put out this suggestion in order to listen to what noble Lords have to say. The product would be a consideration of how the Act has operated. It may be that those who have seen how it has operated will say, "Well, in this area, it is absolutely first class. Ministers have got it really bang to rights. But they have really screwed it up here and we think that there should be some technical changes". Therefore, any report they wished to make to the Home Secretary for debate in Parliament would contain recommendations—either, first, "Everything is okay", or, secondly, "We think certain matters should be revisited".
How it will be taken forward will depend largely upon the reaction that we get from noble Lords. If people say, "This is not what we want. It is not worth a candle", we shall have to look for some other way. But we have given the idea serious consideration. The noble Lord, Lord King, made a very positive point. He took account of one issue—not the detail of all the individual issues in the Bill but the central issue of the whole Bill being directed towards this emergency and the prevention of other emergencies, the precautionary issue, if you like.
Some measures will be "sunsetted", some we do not propose to sunset, but we will look at the totality of the Act, after a reasonable period of time, and say, "Look, does the Act do what Parliament intended it to do and has it proved to be operationally feasible?". That will
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be a useful exercise. It will take account of the fast-tracking of the Bill through both Houses. But it largely depends on the reaction of noble Lords. If we can come to some kind of agreement, it could be done quite quickly.
Lord Elton: I am grateful to the Minister for that reply. I imagine that there will be discussions through the usual channels or between the principal Front Bench spokesmen involved in the Bill. I hope that in those discussions will be raised the possibility of a small addition to the guarantee of time—that is, a guarantee that, if both Houses are of the view that a change needs to be made where Ministers have screwed up because of a technicality, to quote the Minister, sufficient time will be available to put right what has gone wrong.
That is a considerable undertaking—I do not ask the Minister to give it now because it is a commitment of parliamentary time—but it will make the difference between this being a nice gesture and an actual improvement.
3.45 p.m.
Lord Rooker: I am in no position to commit any more parliamentary time than I have already committed—that is, a guarantee that the report will be debated in both Houses. I ask the noble Lord to put himself in a position, 15 months down the road, where the issue has been looked at in the way I have described, or in some similar way. If there were concrete suggestions for modifications which gained the acceptance, generally speaking, of both Houses, they would have to be taken seriously. However, I cannot guarantee the position; it would be a matter for discussion. It may be that this would not meet the needs or desires of the original proposal.
However, we have looked at the suggestion. We have not stopped looking at ways to improve the Bill. We understand that we are fast-tracking the Bill through Parliament. There are no guillotines in this House—noble Lords will have eight days of debate; the other place has had three. We understand that and we want to take it into account so far as it concerns the whole Bill and not only the narrow parts that we have already committed to statutory review. We shall use our best endeavours.
Lord Thomas of Gresford: To return to the amendment under debate, I gather from the Minister's reply that the word "suspects" is a device to avoid the Terrorism Act from kicking in—that Act providing, of course, ample remedies for a person who is thought to be a terrorist. How can the Secretary of State reasonably believe a person to be a risk to national security and not reasonably believe him to be an international terrorist? What other threats to national security does the Minister have in mind in using that phrase?
I follow my noble friend Lord Goodhart in asking again what level of information has to be placed before a Minister to give him the reasonable suspicion that a person is an international terrorist. Is it a 1 per cent of

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certainty belief; a 10 per cent of certainty belief; or what? Guidance needs to be given both to the Secretary of State and to SIAC, which reviews his decision, as to the standard of proof that has to be put before the Minister for him to come to the conclusion that a person could be an international terrorist. I should be grateful if the Minister could deal with that point.
Lord Rooker: The terms of Clause 21(1)—in other words, the grounds on which the Secretary of State would issue a certificate—state that he has, first, reasonably to believe that the person's presence is a risk to national security; and then suspect that the person is an international terrorist. It may be, for example, that we cannot prove, on the second limb, that someone is a member of a particular organisation, but we have enough grounds for believing that that person's presence in the UK is a threat to national security. Because of the information available, it may be impossible to do anything more than suspect that the person is an international terrorist.
There are two limbs in the clause. Suspicion is less than belief, but the suspicion that someone is a member of a terrorist organisation has to go with the first limb. The two limbs go together; there has to be a belief that there is a risk to national security and a suspicion—not a belief that the person is an international terrorist. We may not have the proof that a person is a member of an international terrorist organisation, but that will have to be set out in the certificate that is placed before SIAC. I cannot give an assessment of the risk on a scale of one to 10. I do not think that anyone would be in a position to do so until an actual case arose and a certificate had to be written.
Lord Thomas of Gresford: Will the Minister forgive me for coming back on this point? How can the Secretary of State "suspect" that a person is an international terrorist—something rather less than "believing" that he is an international terrorist—and then go on to "believe" (which is the higher level of belief),
"that the person's presence in the United Kingdom is a risk to national security"?
How does that arise? It is simply illogical.
Lord Rooker: It is not. But I cannot go into it, because it will be a combination of facts that are known publicly and inadmissible evidence. The very reason that we shall not prosecute the person in the first place is that the evidence will be inadmissible in court.
Lord Campbell of Alloway: I support the amendment. Unless it is accepted, the provision makes no sense in practice. In moving towards certainly, "belief" is nearer than "suspicion". I shall not go into percentages as regards the burden of proof. This is not a trial; it is an executive decision, taken reasonably by the Minister. But as part of that process, he really ought to "believe"—which is a higher standard than merely "suspecting". I am totally behind the issuing of
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a certificate and have supported it all along. But to issue a certificate, with all the consequences, the Secretary of State really ought to "believe". This is a sensible amendment, which works better in practice.
The Earl of Onslow: If I am right—and, as always, I am open to correction, being a modest man—this process would not be subject to judicial review. So it does not matter what the subsection says. It does not matter whether it says "belief" or "suspicion". Whatever the Minister says goes. The fact that an Act of Parliament says one thing does not basically matter if, at the bottom, it states, "This is not subject to judicial review". That is where the tyranny starts. That is tyranny.
Earl Russell: The noble Earl is a little bit of a pessimist for once. We have not yet debated Amendment No. 104 standing in my name and that of the noble Lord, Lord Campbell of Alloway, and the amendment to it, Amendment No. 104ZA in the name of the noble Lord; nor have we debated clause stand part. In relation to the amendment before the Committee, I agree with what the noble Lord, Lord Campbell of Alloway, has just said. This is a considerable power. The Secretary of State ought to be pretty sure before he uses it.
Lord Morris of Aberavon: Will the Minister kindly confirm what I suspect to be the appropriate interpretation—I may be wholly wrong—first, that the two limbs go together? The word "and" is an important part of the subsection. There must, first, be a belief that a person is a risk to national security. That is the engine that brings him within the purview of the clause. If that is not there, the operation would be a complete non-starter. That needs a "reasonable belief". That is obviously a high standard.
As regards the second limb, there may well be some doubt, some uncertainty, something less than a "reasonable belier"—as the Minister indicated earlier, there may not be a surety—as to whether the person is a member of a particular organisation. That can be conveyed in a lesser degree of importance than the much more important matter that he is "reasonably believed" to be a risk to national security. Will the Minister please confirm that?
Lord Rooker: I am grateful to my noble and learned friend. He is absolutely right. If there is a rock solid belief, a surety, that the person is an international terrorist, then there is another avenue for dealing with the matter. It is because we do not know, because we have a suspicion that the person is an international terrorist, coupled with the fact that the person's presence in the UK is a threat to national security. There is a weakness in the second limb, it is true; but that is the whole point of it. If we look for surety, we have another route—through the Terrorism Act. If we take no action, it means that even when we have suspicions that people are international terrorists, we leave them walking free. The purpose of the Bill is not to let that happen.
Earl Russell: Will the Minister provide one more piece of information? When decisions on asylum have been taken to appeal, what proportion of the Home Office's suspicions have proved to be justified?
Lord Rooker: It depends what kind of applications the noble Earl is talking about. They could be nationality applications, where there is a statutory process. They could be asylum applications, or marriage applications. I am not sure. There are areas where more than 50 per cent of Home Office decisions are secured on appeal. But off the top of my head I could give only one. It would be unfair merely to give the figure for asylum applications. That would not be right. We are not talking only about asylum seekers. There is a misnomer here; it would be wrong to equate.
The point is that this provision is subject to appeal. That is what SIAC is all about. Those noble Lords who were able to stay to the end of the debate two days ago to listen to my noble and learned friend the Attorney-General explaining how in the Bill there is a greater degree of scrutiny than there would be under straightforward judicial review will probably hear that explanation repeated today. So this is not tyranny. That is an outrageous and offensive remark from the noble Earl, Lord Onslow. The Minister's action is subject to review by judges of the High Court. To call that tyranny is an absolute nonsense. I reject it outright.
The Earl of Onslow: The noble Lord said that I am accusing him of tyranny. If you allow Ministers to do something on suspicion, that is verging on tyranny. That is why my ancestors fought in the Civil War. Noble Lords opposite may laugh at English liberties, but I say to them: do not; they are too important. They are the liberties for me to stand up and bully the noble Lord, Lord Rooker, and for the noble Lord to stand up and say that I am talking rubbish. That is what English liberties are all about. If we are not very, very careful, because we do not like one Arab who does something nasty and we suspect that he is wrong, we shall be in danger of holding back English liberties. That is something for which I have been in Parliament all my life and I shall go to the stake for. So when I use the word "tyranny", I use it totally advisedly. I have read my history. I have read my Stuarts and I have read my Gibbon. I know what I am talking about. The important thing is for the noble Lord, Lord Rooker, to be able to tell me that I am talking rubbish. That is why English liberties are so important—and that is where the Bill goes wrong.
Earl Russell: I wonder whether I may ask the noble Earl—who is making a very serious point—to find a slightly more parliamentary way of expressing it.
The Earl of Onslow: The answer to that is "No"!
Lord Rooker: The only way I can express it is that we have a Home Secretary and a democratically elected Government. He will make the decision based on the reasonable grounds that a person he believes is a threat
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to national security is in this country and some action should be taken. He is doing it to defend the liberties of the people who live in this country.
Lord Corbett of Castle Vale: I am having some difficulty in understanding the procedure of this place, and the exchanges that have just taken place do not make it any easier for me to get to grips with it. I thank my noble friend for sharing those important thoughts with the Committee. I am only sorry that he was not so open-minded in regard to this little amendment. For several minutes I had the impression that it had been hijacked. The Minister generally impresses the House from the Dispatch Box, but on this amendment he has not been as clear as he normally is.
The clause applies only when a decision is taken that there is insufficient admissible evidence to use the vehicle of the Terrorism Act, because certain allegations cannot be proved. That is why we are here. I am grateful to those who have joined in the debate, and particularly to those who have taken this point. Against that background, it is all the more important that the Home Secretary's decision to issue a certificate should be based on something more substantial than suspicion.
I understand the point made by my noble and learned friend Lord Morris, but I want the Minister to think about the issue again. We have to grasp the fact that the clause could result in a person being imprisoned indefinitely without trial. We understand the reasons for that and the relevance of the Terrorism Act. This is no light matter. I believe that it is proper to insist that the basis on which a certificate can be signed and issued should be belief—even though that belief cannot be proved in court to the satisfaction of a jury—because it is a stronger foundation than merely suspicion. That said, I beg leave to withdraw the amendment, but I am likely to return to it.
Amendment, by leave, withdrawn.
4 p.m.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 103B:
Page 10, line 38, leave out "an international" and insert "a"
The noble Lord said: I crave the indulgence of the Committee for a few moments because this is my first time on my feet today. I welcome the rather limited flexibility apparent in the Minister's opening remarks this afternoon. Any signs of flexibility in the treatment of this Bill are welcome. I was pleased to hear those comments. We shall have to wait and see the substance of those points before we are able to make a judgment on them. Does the Minister accept that, in part, the problems that we all face with the Bill, which make his flexibility all the more welcome, are caused by the breadth and scope of its content? Had the Bill been more focused, perhaps the more limited parliamentary supervision that we are able to give it would have been more acceptable.

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I shall speak also to Amendments Nos. 104A and 110A. The purpose of the amendments is to remove an anomalous distinction. They would make the Bill comply with the Prime Minister's words in another place, when he said:
"the legislation that we propose will apply to terrorism wherever it occurs—whether inside the United Kingdom or outside, or whether it is international or domestic".—[Official Report, Commons, 4/10/01; col. 684.]
The first two amendments deal with the use of the word "international" in subsections (1) and (2) of Clause 21, and Amendment No. 110A would remove the unnecessary and improper distinction from subsection (4).
That distinction leads to an oddity. Subsection (4) says:
"'international terrorism' does not include terrorism concerned only with the affairs of a part of the United Kingdom".
Under that definition, somebody from abroad who was planning terrorism exclusively in London would not be an international terrorist. That is odd. Equally, an organisation based in London but undertaking UK-wide terrorism would be an international terrorist organisation. That is also odd.
There is then a question over the position of possible sub-groups of the Irish Republican Army, such as the Provisional Irish Republican Army, whose members have previously undertaken UK-wide bombing. Are they international terrorists or exclusively United Kingdom terrorists? One could go on, because there has been plenty of publicity about the international links between most terrorist organisations. We know that PIRA has had links with Colombia and Libya. Does that make them international terrorists? All terror organisations are involved in criminal activities, particularly with regard to the drug trade as a source of funding for imports of arms and explosives. It cannot easily be said with any certainty that there is such a thing as a purely UK terrorist organisation. We think that such distinctions are invidious and fly in the face of the remarks that the Prime Minister made before we got near to this Bill.
We do not think that the amendments attack in any way the purpose or intention of the Bill. Even with the amendments, this part of the Bill would still contain the necessary distinctions to enable it to function properly, as the Government desire. If the Minister is still in his flexible mode, I suggest that he could accept the amendments without destroying the integrity or intention of the Bill. I beg to move.
Lord McNally: When the issue was discussed in the Commons, my party supported the Conservatives in a Division on the amendments. If the Conservatives choose to divide the Committee today, we shall not support them.
Noble Lords: Oh!
Lord McNally: What a wonderful exhibition. Let me bring the Conservatives up to date. We are dealing with one of the most serious Bills before Parliament. On Second Reading, I told the House how my party
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would deal with it. I said that in Committee we would probe and listen not just to the Government, but to the array of expertise around the Committee. Having probed in Committee, we would come to conclusions about where we agreed with the Government and where we disagreed with them. We are not interested in cheap Thursday night defeats of the Government, to be spun as they would.
Lord Waddington: I do not quite understand the noble Lord's argument. Surely his party has come to a conclusion about the matter. Why is it necessary now to hear the arguments, which have already been rejected by his party leader?
Lord McNally: If the late Home Secretary, had listened more to arguments, he might have made a better Home Secretary.
Lord Mowbray and Stourton: Shame! Apologise!
Lord McNally: I am not apologising.
Lord Mowbray and Stourton: You should.
Lord McNally: Is that the way the Conservative Party wants to spend this afternoon—when we are remembering those whom we lost on 11th September? I do not believe that the Committee stage of this Bill is the time for taking one particular issue, dividing the Committee and trying to defeat the Government. We made it clear on Second Reading that we were going to listen—and we are listening.
The Earl of Onslow: There is something infinitely depressing about the noble Lord's remarks. Up to now, members of the Liberal Benches have been showing that they are both liberal and democratic.
Lord McNally: We do not need a lecture.
The Earl of Onslow: Oh yes you do! Suddenly, they have gone back into creep and soldier ant mode, which is so sad. We are dealing with something that is very serious. I am probably slightly more outside some of my colleagues in supporting many of the things said by the noble Lords, Lord Phillips of Sudbury, Lord Goodhart and Lord Thomas of Gresford. It is sad to see a great party—the party of Gladstone—go into creep mode. That is what the noble Lord, Lord McNally, is doing.
Baroness Park of Monmouth: I feel concern that this matter is being treated as a party issue when it is a national issue. There is little doubt that the IRA has been endeavouring to help Iraq learn how to make explosives and is in regular touch with ETA—the Basque terrorist movement that killed people only recently. Does not that suggest that the IRA is international and therefore should be covered by the Bill? It is as simple as that. Whether we vote now or at any other time may be a matter of tactics—I do not know. However, it is offensive to suggest that we

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cannot debate the matter. I thought that the purpose of Committee stage was discussion. I hope that the Minister will regard this issue as relevant to the Bill and relevant now.
Lord McNally: That is exactly what I was suggesting. We should have a thorough discussion and hear what Ministers say. I find the wording at Clause 21(4)—where it states that international terrorism
"does not include terrorism concerned only with the affairs of a part of the United Kingdom"
—a bit rum myself. Members of the other place had three days to discuss the Bill. Debate was not concertinaed and rushed through. Your Lordships have eight days, including four days in Committee. Since I have been a Member of the House, it has been the purpose of the Committee stage to probe, listen to argument and debate—not suddenly to be told that the Government will be defeated tomorrow afternoon on a single issue.
I have heard discussions in corridors—perhaps the Minister will deal with this—when it has been suggested that this is a piece of Government appeasement to the IRA, which is why a number of noble Lords are in the Committee and excited today. I genuinely want to understand why the Bill makes a distinction between terrorism and international terrorism, to produce contradictions. Is that because the Bill deals with a section of terrorists not already covered by the anti-terrorist legislation that we passed less than a year ago? I am exploring and probing. If the Minister's replies are unsatisfactory, we are willing to have talks with Conservative Members—as we did in the other place.
Lord Campbell of Alloway: Would the noble Lord find it acceptable, as this is not a political issue, if we were to discuss the matter without preconceptions, listen to the arguments and vote according to our conscience?
Lord Hylton: I am inclined to think that the noble Lord, Lord Dixon-Smith, has a good point because this group of amendments tends to strengthen the Bill rather than weaken it. If the Government do not accept the amendment, I hope that the mover will return to them at the next stage.
Several noble Lords Several noble Lords rose—
Lord McNally: If I may be allowed to conclude my remarks, then others can get in at this wonderful Committee stage. There seems to be either an anomaly or a contradiction that needs clarification. If the Minister has a satisfactory explanation, he can rely on our support at Report stage. If the anomaly or contradiction is sustained, we may support the Conservatives—as we did in the other place.
4.15 p.m.
Lord Maginnis of Drumglass: One thing that I learnt during 18 years in the other place was that emergency
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legislation is fraught with difficulty, which is my reason for supporting the amendment. The lines in question will weaken the Bill by the negative way in which they deal with the problem.
Emergency legislation introduced by the Minister's party after the Birmingham bombing more than 25 years ago was subsequently opposed year after year by members of that same party when it was necessary annually to renew that legislation. We are treating the Bill as though it were a 15-month, six-month or even three-month measure for dealing with a short-term problem—yet the Government accept that defeating international terrorism is a long-term issue. Hence it is important that those parts of the Bill that are open to question are correctly and properly defined.
To suggest that international terrorism does not include—rather than defining what it does include—terrorism concerned only with the affairs of a part of the United Kingdom, is for most of us totally confusing. What part of the United Kingdom are we talking about? Is that meant to cover only Northern Ireland? Is it meant to refer only to the Provisional IRA?
For the past three years, the Government have been telling me—and I have been prepared to accept—that the Provisional IRA wants to move away from terrorism. It appears that in these two lines, the Government are displaying doubts that I have been doing my best to avoid during that period. If we believe that the Provisional IRA is moving incrementally towards normality and participating in the democratic process, why would we discourage them? Why would we display signs of weakness by including such an element in the Bill? I hope that that is not done out of sensitivity to either the Real IRA or to loyalist terrorists in Northern Ireland. If that is the case, it displays the sort of weakness that successive governments have been guilty of within the United Kingdom not for 10 years or 30 years, but since the Second World War. The events of 11th September were a catalyst not for something that has occurred in recent times, but rather for something that has crept up on us and to which we have turned a blind eye for many years.
So when the Government decide what is meant by,
"concerned only with the affairs of a part of the United Kingdom",
will they then tell us what is deemed to be "the whole" of the United Kingdom? Are we thinking exclusively of Northern Ireland? Are we thinking of something that may happen in London or Manchester? If it does not happen in Gretna Green, does that mean it is not the whole of the United Kingdom? There is an almost simplistic nonsense in the form of words used in those two lines. The amendment removes a negative from the Bill and therefore I ask the Government to think carefully as to whether or not they should accept it.
I could go on talking about terrorist organisations and about what are their primary and secondary objectives—we have seen examples of that in recent times in Colombia. Albeit Sinn Fein and the Provisional IRA claimed that to have been an

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unauthorised activity, it had serious repercussions and our friends in the United States considered it such. But was it the primary objective of those members involved or was it their secondary objective, bringing us back to their primary objective in the United Kingdom? However, I conclude by saying that this important piece of legislation may have to sustain us not for six or 15 months, but for a considerable number of years. So let us not tie ourselves down to a totally negative qualification.
Lord Thomas of Gresford: The framework the Government have chosen of using immigration procedures to control international terrorism clearly does not apply to British citizens who live in Northern Ireland nor, I believe, to citizens of the Irish Republic. It can only apply to people from outside. Consequently this is not an instrument for dealing with terrorism from that quarter.
In the spirit of probing and inquiry that always exists on these Benches, I should like to know from the Minister whether these procedures will cover, for example, a Basque-ETA terrorist who came to Wales to fund a separatist movement in such a way that would disrupt not just Wales, but the whole of the United Kingdom? Would a person in such circumstances be regarded as an international terrorist who would be subject to these procedures?
Lord Glentoran: I do not like to play party politics with Northern Ireland matters and today I am speaking from the Back Benches.
This provision is of particular importance to Northern Ireland and a number of issues arise from it which give me grave concern. I flagged up these problems both privately and semi-publicly the other night to the noble and learned Lord the Lord Privy Seal, who now speaks for the Government on Northern Ireland matters. I let it be known before the Bill arrived in your Lordships' House that this was an area of concern to those of us involved in Northern Ireland matters.
Over the few years I had the privilege to speak for the Opposition on Northern Ireland affairs, I had a great deal of discussion with and received much cooperation from the Government. This point was well flagged, as the noble Lord, Lord McNally, said, in the Commons, and the whole of the Commons, other than those whipped, supported this amendment or something similar. I am therefore suspicious that once again the Government have a secret agenda for Northern Ireland.
We have quite a lot of legislation coming forward. I have been duly warned by the Lord Privy Seal that most of it will be contentious and, for some of us, difficult to accept. That is the way of life with Northern Ireland affairs. But something like this, which concerns the whole kingdom and is part of a worldwide international war against terrorism—as the President of the United States and our Prime Minister said—makes it incomprehensible that once again our Prime Minister is looking for a way not to keep a promise to the people of Northern Ireland. Is this yet
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another promise that he and his party know they cannot keep? Is this just a sideways move to let the Government off the hook?
Logically, there is absolutely no sense in this clause. It has been said to me in the corridors that the Government's interpretation is different from mine and those on our side. In the Northern Ireland terrorist situation we have a series of terrorist groups. If we relate them to this clause, we will find that those who are on ceasefire—the "good" boys—are those who are most visibly seen as international terrorists. There is no doubt about their credentials. They have been seen in Colombia, in Libya, as was said by my noble friend Lord Dixon-Smith, and in Turkey; they have been seen everywhere. We know that they have been training people from other terrorist organisations. We are not certain but have strong beliefs that they have had close links with the Al'Qaeda organisation. However, there are dissident groups in Northern Ireland who do not relate to anybody, and that includes the loyalist groups. They are bad news terrorists. As I understand it, if this amendment is not accepted, they will be treated as a different type of terrorist.
Noble Lords may remember that during a number of debates in this House, from the Dispatch Box I have accused the Government of trying to set up two classes of terrorism. Again that fear is coming to a head. I support the Government as much as I can in all that they have done and are doing in Ireland, and my party supports them. I listened to the remarks of the noble Lord, Lord McNally. I am very sorry that somewhere betwixt and between there has been a complete change of mind. I do not know what has gone on between the usual channels.
4.30 p.m.
Lord McNally: In the Commons nothing approaching a debate like this took place on how the clauses applied to Northern Ireland. Rather than rushing to judgment I hope that Ministers and the Opposition read this debate, including the contribution of the noble Lord, Lord Glentoran. Such a debate did not take place in the Commons because of the truncated nature of proceedings.
Lord Glentoran: I thank the noble Lord for that intervention. I conclude by asking the Minister at least to follow the lead of the noble Lord, McNally: to discuss the matter further with the Secretary of State for Northern Ireland, the Northern Ireland Office and those in the Home Office.
Earl Russell: During the time I have attended this Chamber, I have known many Members of the noble Lord's party whom I have regarded as great ornaments of this House. Two names come to mind: Lord Whitelaw and Lord Joseph. Both had the distinction of being capable of saying in this Chamber, "I have changed my mind". That was one of the things for which I most admired them. If my right honourable friend Mr Kennedy and my noble friend Lord McNally develop that same ability I should have thought that that is a reason for respecting them rather than the opposite.

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For myself, I shall take a little persuading that the amendment should be accepted, partly for the reasons outlined by my noble friend Lord Thomas of Gresford. The whole framework of the Bill is designed to deal with immigration law, asylum law, international money transactions and aircraft. There are domestic terrorists other than the IRA who pose dangers to many of us, in particular to people in universities. I wish to see that dealt with. I do not think that it is effectively dealt with within the compass of the Bill. In Northern Ireland I believe—and I choose my verb with great care—that there is still a peace process in progress. I do not want to risk disturbing it by further legislation. If it should continue to be in process, it would give me very great pleasure.
Lord Crickhowell: I do not intend to follow my noble friend Lord Glentoran on the subject of Northern Ireland although I have the utmost sympathy with what he said.
I have written in the margin of Clause 21(4) almost exactly the same question as was asked by the noble Lord, Lord Thomas of Gresford. Perhaps I was prompted by the memory of a bomb placed in my son's bedroom some years ago. If some nationalist or language fanatic, perhaps linked with Basque terrorists who had similar objectives, were again to pursue a similar campaign, does that come under the definitions in Clause 21(4)?
We have had huge demonstrations in recent years against capitalism. What happens if a small group, based on feelings hostile to capitalism, starts placing bombs in the City of London? I am not sure whether or not that is,
"concerned only with the affairs of a part of the United Kingdom".
Perhaps on examination it could be proved conclusively that it was part of something far more general. But I can think of circumstances in which the group concerned might be fairly narrowly based, connected with international groups, but directing its efforts entirely against a restricted part of the United Kingdom. Therefore, we need answers to a number of important questions before we finally make up our minds.
As regards the contribution of the noble Lord, Lord McNally, I hope that he will give us credit if we make up our minds on the subject of the debate. I hope he will listen carefully to the arguments. If he is not satisfied—I wish that he had explained his attitude somewhat more fully instead of devoting so much time to attacking my party—I hope that he will not hesitate on Report to vote against the Government. He indicated that he might. But when the issues are so clear and important, I am surprised that he was not more explicit about his eventual attitude. But I live in hope. I hope that we shall have him in the Lobbies with us if the Government do not produce satisfactory answers to the questions which have been asked.
Lord King of Bridgwater: I share the concerns which motivate the amendment. I do not understand the
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point raised by the noble Lord, Lord Maginnis, about "a part" of the United Kingdom. Clearly, if we are dealing with Irish republican terrorism and, to an extent, loyalist terrorism, it has taken place in every part of the United Kingdom. In no sense has it been restricted to one part.
If there is concern that there may be sensitivities in the light of the current situation, these are discretionary powers for the Home Secretary. He does not have to exercise them. It is up to him whether he uses them. To have the prohibition to remove the power from one particular area seems to me an unnecessary limitation.
However, I was provoked to speak by reading the helpful Explanatory Notes provided by the Government which state:
"Domestic terrorism is excluded from the certification process because the Government has concluded that the nature of the public emergency is such that it would not be justified in applying the extended immigration detention powers to those involved in such terrorism".
Whatever may be the reason for the inclusion of this restriction, that seems most peculiar. I shall be most interested to hear the Minister's explanation of the Government's own Explanatory Notes.
Lord Monson: Was the noble Lord, Lord Maginnis, right to suppose that a citizen of the Republic of Ireland would not be caught by Clause 21(4)? From my admittedly inexpert scrutiny of Clauses 21 to 23 it would seem that an Irish citizen could be caught if he were involved international terrorism. Perhaps the Minister can confirm that one way or another.
Lord Marlesford: Last month I spent a few days in the United States. I discovered how appalled the Americans were to have been introduced to the world of international terrorism. I also found how appalled they were to realise that for many years they had been contributing towards the financing of terrorism in the United Kingdom. That realisation is widespread.
I believe it is not unconnected with that realisation that the Sinn Fein-IRA has decided to make a move towards decommissioning—somewhat token though it may be. If the Government were not to accept the amendment, or something like it, in due course Sinn Fein-IRA would again be able to go to the United States flourishing what it would claim to be a clean bill of health from Her Majesty's Government and re-start its collection of funds. If it does not revert to terrorism, I suspect that it would have nothing to fear from this Bill. If it does, surely one can only echo the words of the Pope when he went to Ireland some years ago: "Murder is murder".
Lord Goodhart: I wish to take up and expand upon a point made by the noble Lords, Lord Maginnis and Lord King. The full title of the United Kingdom is the United Kingdom of Great Britain and Northern Ireland. If we have an organisation which wishes to separate those two constituent parts from each other—Northern Ireland and Great Britain—how could that be described as being an organisation which is

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concerned only with the affairs of a part of the United Kingdom? If it is an organisation which is concerned with the affairs of the whole of the United Kingdom, is it not already a case of international terrorism within the meaning of subsection (4) of Clause 21? I should like to hear the answer to that question.
Lord Rooker: This has been an interesting debate but it goes well beyond the central issue. Although I realise that the other place did not have much time to discuss the matter, it is apparent from some of the points Members of the Committee have made that they are aware of the unusual foundation of the legislation; namely, immigration legislation. That is the central issue we must keep in front of us. We are dealing with immigration legislation. For that reason and that reason alone, it is not possible for UK citizens to be treated in the way we are discussing as we could not deport them anywhere. They are UK citizens. The same rules could not apply. People who are not UK citizens have no right to be in the country other than the rights they have to work and so on.
The Earl of Onslow: May I—?
Lord Rooker: No, I want to continue. I shall give way to the noble Earl shortly. The central issue is that we cannot deport our own citizens. That has to be kept in mind. We are using the immigration powers. I shall try to deal with all the questions that were asked. I believe it was the noble Lord, Lord Monson, who referred to my next point. Citizens of the Republic of Ireland, for practical and legal purposes, are treated as UK citizens. We have a common area. There are no barriers between us. We are free to come and go between, or to work in, the two countries. There are no immigration restrictions as between the two countries.
The Earl of Onslow: May I—?
Lord Rooker: If I may complete the point. Citizens of the Republic of Ireland are not affected by this legislation because they are treated as UK citizens. I do not want to be misunderstood in the Republic of Ireland. Everyone understands that we share the British Isles, if I can put it that way. As I say, there are no barriers between us. Therefore, the citizens of the Republic of Ireland would not be affected by this legislation.
The Earl of Onslow: I have two points. First of all, this matter was settled by the Ireland Act 1949. When Costello took the Irish out of the Commonwealth they were deemed by Act of Parliament to be treated as British citizens. I am just briefing the noble Lord on that. I refer to the interesting difference between the remarks of the noble Lord, Lord McIntosh of Haringey, yesterday when he said that the scope of the Bill was quite wide, which he defended, and what the noble Lord, Lord Rooker, is now saying; namely, that it is solely to do with immigration. It seems to me that the Government have not got their act together on that.
Lord Rooker: The noble Earl
Lord Dixon-Smith: Before the Minister develops his argument too much further it might help take matters forward if I say that I entirely accept the point that he has just made. I do so with no difficulty whatsoever as the amendments that we have tabled are not designed in any way either to attack or to erode that situation. The amendments that we have tabled are designed simply to remove from the Bill a distinction which would be better if it were not there. It is as simple as that. We accept that the Bill in that regard is established to capture terrorists who otherwise would be subject to our immigration law. We do not have any difficulty with that; we are dealing with a very specific and narrow point. I should like the narrow point to be addressed rather than the point which the Minister is addressing, which we do not think is affected in any way by the amendments we have tabled.
4.45 p.m.
Lord Rooker: I hope that I shall address all the points that have been made. I do not criticise any as being narrow. However, the fact remains that the basis for introducing the legislation are the events of September 11th. We made that absolutely clear in the debate on derogation. Events preceding those of September 11th do not give us grounds for derogation. The Committee may argue that the Bill goes a little wider than that and that we are closing loopholes. We shall debate that matter. However, we must justify what we are doing in terms of terrorist threats. The international perspective has changed since September 11th, but the domestic perspective has not. We would have had no right to derogate from the European Convention on Human Rights in terms of domestic terrorism as the perspective on domestic terrorism has not changed since September 11th. However, by common consent, the international perspective has changed. That is a central plank. We are not trying to act retrospectively.
Baroness Buscombe: May I—?
Lord Rooker: May I proceed? I shall give way to the noble Baroness. Some of the remarks that have been made revealed almost a resentment that the IRA and its political allies have participated in the peace process to the extent that they have. I do not accept that. There is a peace process under way. It may be inadequate from the standpoint of some people, but in terms of the domestic terrorism from which we have suffered for many years, a peace process is under way. That is the reality. It is not fast or deep enough, but people have their own views on it. However, no one can gainsay the fact that there is a peace process. As regards events before September 11th, we do not have any grounds for doing what we seek to do in this Bill, particularly in regard to the derogation from the European convention. That has to be the case. We are not in a position—
Baroness Buscombe: I hate to interrupt the Minister but I listened to his comments on the "Today"

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programme this morning on the radio. He said quite clearly, "I will be bringing forward amendments to change the definition of international terrorism". Will the Minister tell me why he said that?
Lord Rooker: I have not seen the transcript. I know that I do not speak proper English, but I referred to the definition of an international terrorist. I know what I said. The fact of the matter is that the amendments are on the Marshalled List. It is not a question of bringing them forward. The "links" amendment is there for everyone to see. It is printed.
Baroness Buscombe: I make the point because millions of people listen to the "Today" programme. It is their understanding, having listened to the Minister, that there will be changes to this very vital part of this very vital Bill, in which case they are being misled. That is all I say.
Lord Rooker: The noble Baroness is making a mountain out of a molehill. The "links" issue was flagged up in the other place. I refer to the third limb of the definition of an international terrorist. Our amendments are clearly on the Marshalled List. I have already said that I shall move them in due course. An issue has been raised in that connection. I refer to our listening process and Clause 21(2)(c). As I said, our amendments are on the Marshalled List. That was what I referred to this morning. I have already referred to our Amendments Nos. 107 and 110. There is no argument about that.
Baroness Buscombe: I accept that those amendments are on the Marshalled List but they deal with links with terrorists; they do not deal with the clear definition of "international terrorism" and what that means.
Lord Rooker: They must because they define what an international terrorist is. That is what Clause 21(2) is about—the definition of an "international terrorist". We do not accept what the noble Baroness says because it has been said that we have got the matter right in paragraph (c). The definition is too wide and we want to narrow it. That issue was raised in the Select Committee report and it was raised this morning. I have not misled anyone. I made it quite clear that the amendments were on the Marshalled List.
The Earl of Onslow: Will the noble Lord confirm that he has brought forward amendments which are linked? What did he mean by "I will bring forward", which is what he appears to have said on the wireless this morning? If he says, "I will bring forward", I should like to know what those amendments are because we have not seen them yet.
Lord Rooker: Perhaps I may make it clear. At a quarter to nine this morning I was talking about the future. But the future is now—today. The amendments have been published in the Marshalled
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List. I am bringing them forward. There is no secret about them. They are not manuscript amendments; they are printed and available for everyone to see. We said that we would bring forward those amendments and we have done so. I am sorry if people are unhappy about us moving forward on this matter but, frankly, we believe that a good case for it has been made. We believe that the wording in paragraph (c) was much too wide and that is why we are rewriting it.
I want to make a further point. We are dealing with the peace process because the issue of Northern Ireland has been raised. I hope that I have explained why this legislation, which has come about due to changed circumstances following September 11th and deals with international terrorism carried out by international terrorists, does not apply to the situation that preceded the events of that date. Plenty of legislation is in place to deal with that situation and it would not allow us to derogate from the European Convention on Human Rights so far as concerns UK citizens. That is clear.
Members of the Committee have not followed the logic of what they are saying or hinting at; that is, that somehow we can deport UK citizens. We cannot do so. We want to prosecute terrorists, whether they be international or domestic. If we cannot prosecute international terrorists, then we want to detain them if we cannot remove them. We have difficulties in that regard. That is why this legislation has been brought forward.
Lord Waddington: Perhaps the noble Lord will give way. I am trying to follow the argument very carefully. I appreciate that we are dealing with the part of the Bill which concerns immigration. I appreciate that this Bill is not apt to deal with a British citizen who is not behaving properly. But what about the non-British citizen who is subject to immigration control? He arrives in this country and it then becomes apparent that he intends to become involved in an act of terrorism in Northern Ireland in support of a group which is not acting under a cease-fire. Would it not be absurd if he could not be dealt with under this Bill and be detained? He is a terrorist. He is not a British citizen. He is just the type of person whom we would want to get rid of but perhaps could not return to the country from which he had come, be it Libya or somewhere else in the Middle East.
Lord Rooker: That fits in with the question posed by the noble Lord, Lord Thomas, and another noble Lord about Wales. I have no doubt that there will be highly legalistic arguments about this matter. But, first, it is accepted that we cannot deport UK citizens who are here on a sound basis; it is non-UK citizens whom we want to deport. We are talking about someone who enters this country as an international citizen—that is, someone who is not from the UK—and commits acts of terrorism. If those acts concern the affairs of part of the UK—noble Lords have concentrated on Ireland but an example was also given of Welsh extremists—then it would be argued that it

479
was a domestic offence because the purpose was to help a domestic terrorist organisation, wherever it may be within the UK.
Immigration rules are in place to deal with removing foreigners. Where we cannot remove them, then, in any event, we have a difficulty. That is the case at present. I say to the noble Lord, the former Home Secretary, that SIAC was set up for that very purpose. There may be the odd case which proves to be an exception, but we do not have the powers or the rationale to derogate from the European Convention on Human Rights for events relating to pre-September 11th activities. We would be unable to act on such events.
Although that may appear to be illogical, it is not. One must accept at base that we are trying to meet needs resulting from what happened on, and what has changed since, September 11th. What occurred before then was happening anyway, and, since then, events have occurred during which people have been arrested. The ensuing investigations are continuing under what I shall call our own "domestic terrorism legislation".
This part of the Bill is designed specifically to deal with the activities of international terrorists. If they are in the UK, we must take action to deal with them. That is why the measured response in Clauses 21 to 23 is called for. We may need to detain such people and, if we cannot prosecute or remove them and we are not prepared to have them walking free on the streets, we need to set up powers of detention. That seems to me to be logical.
It would not be logical, and I suspect that the law would collapse because of a derogation from the ECHR, if we attempted to apply the legislation to events which occurred before September 11th. We cannot drum up a reason post-September 11th and say, "Well, things were happening previously and, by the way, we need to catch everyone in this". That would not be accepted and we should not be able to put that type of legislation before both Houses. I give way to the noble Lord.
Lord Crickhowell: I sympathise entirely with what the Minister is trying to do. However, if I understand correctly what he has just said, he has confirmed the point that was raised by the noble Lord, Lord Thomas of Gresford., and myself. That point was that the Basque terrorist coming here in order to place bombs in Wales or, indeed, the Libyan terrorist arriving in Northern Ireland and letting off bombs would escape under this clause because that person would be dealing only with a part of the United Kingdom. It seems to me that we have left an enormous and quite extraordinary gap. Surely that defence will be used by almost any international terrorist who arrives in this country. Such a person will say, "We aren't dealing with broad matters. Our only interest is in putting a bomb in the place where we put it".
Lord Rooker: The noble Lord gives a preposterous example. He talks about international terrorists popping into an airport and saying, "By the way, we have come to lay some bombs in Wales or Northern
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Ireland". That is preposterous. The whole point about this legislation is that the people with whom we are dealing are difficult to catch. When we apprehend them, it will be impossible to prove in a court of law that they are terrorists. For that reason, and because we cannot go to an open court of law, we need the Special Immigration Appeals Commission. We need the two judges and the lay person to deal with the matter so that we can obtain a certificate in order to detain such a person. That is the whole point of the exercise. If that person were open and above board, we should be in a different ball game and we should not need this type of legislative action. I give way to the noble Lord, Lord King.
Lord King of Bridgwater: I shall give the noble Lord a far less preposterous proposition. He is probably aware that previously in connection with PIRA, and certainly also now—most recently in connection with the Real IRA—there are people, subject to immigration controls, against whom there is not adequate evidence which immediately and accurately fits the description that the Minister has just given of the reason why he requires those powers. I fail completely to understand, when the discretion still remains with the Home Secretary as to whether or not he decides to use them, in any one individual circumstance—I believe that the fact that there are discretionary powers is a matter that concerns a number of your Lordships—why, under this Bill, the Government have decided to prevent themselves being able to take action in such circumstances. I find that incomprehensible.
Lord Rooker: I am not sure about the example that the noble Lord gives. His knowledge in this area is greater than mine, but the fact is that non-UK citizens will be affected by this legislation. The noble Lord did not give details of the nationality of the people concerned.
I return to the central issue. Here we are using immigration Act powers. We have taken that approach because the people with whom we are trying to deal are those who, by and large, have no right to be in the country. They are not UK citizens and, therefore, we have the power to remove them if we cannot prosecute them. If we cannot remove them, we need to get them off the streets if we reasonably believe that they are international terrorists or we suspect that they are members of international terrorist organisations. That is the reality. We are not trying to revisit the difficulties and the tragedies that we have had for the past 30 years with regard to our own domestic terrorism. That is an issue for other legislation.
Some noble Lords appear to be implying, but not exactly saying, "Bring back genuine internment", or, "Lock them up", on the grounds that such people cannot go anywhere because there is nowhere for them to go. I do not accept that the detention that we are proposing is internment because such people can leave the country at any time they like for a third country. If that is what those noble Lords are saying, it would be

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much better if they did so openly; that way, we would know where we were in this debate. The reality is that we are not going down the road of reintroducing internment in this country.
5 p.m.
Baroness Park of Monmouth: I am sorry to interrupt the Minister but I want him to clarify something. I believe that he wishes to exclude the IRA from the provisions of Clause 21, but the Bill covers many other matters. I draw his attention, for example, to Clause 51, which we shall discuss later. It is entitled:
"Assisting or inducing certain weapons-related acts overseas".
That is undoubtedly related to the IRA. I cannot understand why the Government should wish to take from themselves the freedom to operate the legislation in the widest possible way. It seems that that is what is happening in this context.
Lord Rooker: The noble Baroness may not like it, but that is not consistent with the Government's policy of trying to make a success of the peace process. For reasons that I have explained more than once, we are not going to return to the situation before September 11th. We have had to derogate—some might use the word "breach"—a convention that this country has been signed up to, under governments of both parties, for 50 years. We have done that openly and we know our reasons for doing so. We did not like doing it but we did it because that is the best way in which we can establish a legislative system for locking up people whom we cannot remove.
I agree that other parts of the Bill, which go wider than the detention of non-UK citizens, apply much more widely. If the noble Baroness, Lady Park, wants to attack them, we shall defend them.
Baroness Blatch: I make two points. First, the Real IRA is not signed up to the peace process. Secondly, the noble Lord said a moment ago that all non-UK citizens would be caught by the Bill. That is simply not true.
Lord Rooker: I am not sure whether I said "non-EU" or "non-UK". We are not going to lock up UK citizens. I state that non-UK citizens are involved; that is why we are using the immigration rules. It may be that if members of Al'Qaeda end up in this country and are non-UK citizens, they will be covered by the provisions. We have laboured that point on several occasions.
Lord Tebbit: Is the Minister aware that he has greatly enhanced his reputation as a man who speaks the truth, even when it is not palatable to his colleagues? He did that when he explained that this whole debate is based around the Government's policy of wishing to continue to appease Irish republicans, including violent Irish republicans. That is the truth of the matter.
Lord Rooker: I have considerable respect for the noble Lord, but that is not a fair description of what I said.
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There is not much more that I can say on this matter. The issue is, as noble Lords will accept, narrow—we want to exclude from the Bill's detention powers domestic terrorism, if I can use that phrase, when it is conducted by what we may call domestic citizens. That is because we have other ways of dealing with it. The mechanism in this context for dealing with international terrorists would not be suitable or consistent with our general policies for dealing with our home-grown terrorists.
I have also said that we would not be able to derogate from the ECHR. It may be that people want us to go much further—to tear it up, get rid of Article 3 and pull out completely. However, that is not the Government's policy.
I conclude, although I have not convinced noble Lords opposite, by saying that there are good logical grounds for setting out the definition of international terrorism in the way that the Bill does. I therefore invite the Committee to reject the amendment.
Lord Glentoran: Before the Minister concludes, will he confirm that the real reason that he wishes to hold his ground on this amendment is that Her Majesty's Government do not wish to use the power of derogation from the ECHR in any way that would embarrass their relationship with the Prime Minister of Ireland?
Lord Rooker: I cannot confirm anything of the kind, and I cannot really add to what I have already said.
Lord McNally: During the heated exchange at the beginning of this debate I said something very unworthy about the noble Lord, Lord Waddington. I would not like that to stay uncorrected in Hansard and I withdraw it absolutely and unconditionally.
Lord Waddington: That is very gracious of the noble Lord.
Lord Dixon-Smith: I have listened with fascinated horror as this debate has developed. I thought that the amendment involved a fairly limited, reasonable and coolly considered matter. We need to get back to the amendment and away from the enormously emotive and much wider matter, which is completely irrelevant to the point that I sought to raise in the amendment. That wider matter involves the attempt to solve the problems of Northern Ireland. That is the area into which we have trespassed—I use that word deliberately. I regret that we allowed ourselves to be distracted in that way, but not because anything that was said was inherently wrong. As I said earlier, I was seeking to remove from the Bill a distinction that I regard as invidious and unnecessary. I also said that the amendment would not affect the Bill's core principles.
To pick up one of the Minister's points, I entirely accept that it is right that anyone who is a UK citizen and who undertakes a terrorist act in the United Kingdom should be dealt with by domestic law. I have no difficulty with that or with the fact that the Bill sets

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out to establish that non-UK citizens in terrorist organisations should be dealt with under the immigration laws, if that is a necessary part of the process. The amendment does not affect that arrangement one iota.
I am grateful to those who spoke in support of my amendment—the majority of those who spoke. That gives me some encouragement. It saddened me, however, that the noble Lord, Lord McNally, spoke in the way that he did at the start of the debate. The purpose of debates in this place is to inform ourselves of the issues that are under discussion. It is at the end of such debates that one should make a judgment about how one should go on; one should not do so before such debates.
I add, in parenthesis, that there three main stages in a Bill's passage through this place. That is supposed to involve a filtration process that eliminates some matters. Some noble Lords appear to think that tabling amendments, voting on them and disposing of matters in Committee is improper, but that is a regrettable view. I have always thought that we should be able to dispose of matters if we have reached a clear decision in Committee and that we should leave the Bill's later stages clear so that we can deal with those matters that are more controversial. That seems to be an entirely proper way of going on.
I hear what the noble Lord, Lord McNally, has said, as I heard what he said at Second Reading. I am not surprised. On reflection and in light of the debate, I hope that the Members of his party will consider that they have reason to go against their narrow practice in this matter. Interesting though the debate has been, the breadth of opinions that have been expressed have supported the amendment. Therefore, I shall test the opinion of the Committee.
5.10 p.m.
On Question, Whether the said amendment (No. 103B) shall be agreed to?
Their Lordships divided: Contents, 149; Not-Contents, 139.

Division No. 1

CONTENTS

Aberdare, L.

Brigstocke, B.

Ackner, L.

Brooke of Sutton Mandeville, L.

Allenby of Megiddo, V.

Brougham and Vaux, L.

Anelay of St Johns, B.

Burnham, L.

Arran, E.

Buscombe, B.

Astor, V.

Byford, B.

Astor of Hever, L.

Caithness, E.

Attlee, E.

Campbell of Alloway, L.

Bell, L.

Campbell of Croy, L.

Belstead, L.

Carnegy of Lour, B.

Biffen, L.

Carr of Hadley, L.

Black of Crossharbour, L.

Chadlington, L.

Blackwell, L.

Clark of Kempston, L.

Blaker, L.

Cockfield, L.

Blatch, B.

Colwyn, L.

Boardman, L.

Cope of Berkeley, L. [Teller]

Bowness, L.

Craig of Radley, L.

Brabazon of Tara, L.

Craigavon, V.

Bridgeman, V.

Crathorne, L.

484

Crickhowell, L.

Monro of Langholm, L.

Cuckney, L.

Monson, L.

Deedes, L.

Montagu of Beaulieu, L.

Denham, L.

Montrose, D.

Dixon-Smith, L.

Moore of Lower Marsh L.

Dundee, E.

Mowbray and Stourton, L.

Eccles of Moulton, B.

Moynihan, L.

Eden of Winton, L.

Murton of Lindisfarne, L.

Elles, B.

Naseby, L.

Elliott of Morpeth, L.

Newton of Braintree, L.

Elton, L.

Nickson, L.

Ferrers, E.

Northesk, E.

Finlay of Llandaff, B.

Norton of Louth, L.

Flather, B.

Onslow, E.

Fookes, B.

Oppenheim-Barnes, B.

Forsyth of Drumlean, L.

Oxfuird, V.

Freeman, L.

Park of Monmouth, B.

Geddes, L.

Pearson of Rannoch, L.

Glentoran, L.

Plumb, L.

Goschen, V.

Pym, L.

Hanham, B.

Rawlings, B.

Hanningfield, L.

Rawlinson of Ewell, L.

Hayhoe, L.

Reay, L.

Henley, L.

Rees, L.

Hodgson of Astley Abbotts, L.

Rees-Mogg, L.

Hogg, B.

Renton, L.

Holderness, L.

Renton of Mount Harry, L.

Hooper, B.

Roberts of Conwy, L.

Howe, E.

Rogan, L.

Howe of Aberavon, L.

Rotherwick, L.

Howe of Idlicote, B.

Ryder of Wensum, L.

Howell of Guildford, L.

Saatchi, L.

Hunt of Wirral, L.

Sainsbury of Preston Candover, L.

Hurd of Westwell, L.

St John of Fawsley, L.

Inglewood, L.

Sandwich, E.

Jenkin of Roding, L.

Seccombe, B. [Teller]

Jopling, L.

Selborne, E.

Kelvedon, L.

Shaw of Northstead, L.

Kimball, L.

Shrewsbury, E.

King of Bridgwater, L.

Slim, V.

Kingsland, L.

Soulsby of Swaffham Prior, L.

Laird, L.

Stevens of Ludgate, L.

Lane, L.

Stewartby L.

Lane of Horsell, L.

Strathclyde, L.

Liverpool, E.

Swinfen, L.

Lucas, L.

Tebbit, L.

Luke, L.

Thatcher, B.

Lyell, L.

Thomas of Gwydir, L.

McColl of Dulwich, L.

Trefgarne, L.

MacGregor of Pulham Market, L.

Tugendhat, L.

Vivian, L.

Mackay of Clashfern, L.

Waddington, L.

Marlesford, L.

Wakeham, L.

Mayhew of Twysden, L.

Walker of Worcester, L.

Miller of Hendon, B.

Willoughby de Broke, L.

Molyneaux of Killead, L.

Wolfson, L.

NOT-CONTENTS.

Acton, L.

Brennan, L.

Ahmed, L.

Brooke of Alverthorpe, L.

Alli, L.

Brookman, L.

Amos, B.

Brooks of Tremorfa, L.

Andrews, B.

Bruce of Donington, L.

Archer of Sandwell, L.

Burlison, L.

Ashley of Stoke, L.

Campbell-Savours, L.

Ashton of Upholland, B.

Carter, L. [Teller].

Bach, L.

Chandos, V.

Bassam of Brighton, L.

Christopher, L.

Bernstein of Craigweil, L.

Clark of Windermere, L.

Billingham, B.

Clinton-Davis, L.

Blackburn, Bp.

Cohen of Pimlico, B.

Blackstone, B.

Condon, L.

Borrie, L.

Corbett of Castle Vale, L.

Bragg, L.

Crawley, B.

485

Darcy de Knayth, B.

Mackenzie of Framwellgate, L.

David, B.

Mallalieu, B.

Davies of Coity, L.

Marsh, L.

Davies of Oldham, L.

Massey of Darwen, B.

Desai, L.

Merlyn-Rees, L.

Donoughue, L.

Milner of Leeds, L.

Dormand of Easington, L.

Mishcon, L.

Dubs, L.

Mitchell, L.

Eatwell, L.

Morgan, L.

Elder, L.

Morris of Aberavon, L.

Elis-Thomas, L.

Morris of Manchester, L.

Evans of Temple Guiting, L.

Nicol, B.

Falconer of Thoroton, L.

O'Neill of Bengarve, B.

Farrington of Ribbleton, B.

Oxford, Bp.

Faulkner of Worcester, L.

Parekh, L.

Filkin, L.

Peston, L.

Fyfe of Fairfield, L.

Pitkeathley, B.

Gale, B.

Plant of Highfield, L.

Gibson of Market Rasen, B.

Portsmouth, Bp.

Gladwin of Clee, L.

Prys-Davies, L.

Goldsmith, L.

Ramsay of Cartvale, B.

Gordon of Strathblane, L.

Randall of St. Budeaux, L.

Goudie, B.

Rea, L.

Gould of Potternewton, B.

Rendell of Babergh, B.

Grabiner, L.

Richard, L.

Grenfell, L.

Richardson of Calow, B.

Grocott, L.

Rogers of Riverside, L.

Hannay of Chiswick, L.

Rooker, L.

Harris of Haringey, L.

Sainsbury of Turville, L.

Harrison, L.

Sawyer, L.

Haskel, L.

Scotland of Asthal, B.

Hayman, B.

Sewel, L.

Hilton of Eggardon, B.

Sheldon, L.

Hollis of Heigham, B.

Simon, V.

Howells of St. Davids, B.

Stone of Blackheath, L.

Hoyle, L.

Strabolgi, L.

Hughes of Woodside, L.

Symons of Vernham Dean, B.

Hunt of Kings Heath, L.

Temple-Morris, L.

Hylton, L.

Tenby, V.

Irvine of Lairg, L. (Lord Chancellor)

Tomlinson, L.

Turner of Camden, B.

Janner of Braunstone, L.

Uddin, B.

Jay of Paddington, B.

Walker of Doncaster, L.

Jones, L.

Warner, L.

King of West Bromwich, L.

Warwick of Undercliffe, B.

Layard, L.

Weatherill, L.

Lea of Crondall, L.

Wedderburn of Charlton, L.

Levy, L.

Whitaker, B.

Lipsey, L.

Whitty, L.

Lockwood, B.

Wilberforce, L.

Macdonald of Tradeston, L.

Wilkins, B.

McIntosh of Haringey, L. [teller]

Williams of Elvel, L.

Williams of Mostyn, L. (Lord Privy Seal)

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.20 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 104:
Page 10, line 38, at end insert—
"(1A) Any certificate issued under subsection (1) shall be accompanied by written grounds on which the belief or suspicion of the Secretary of State is reasonably entertained, which shall be subject to judicial review in the High Court."
The noble Lord said: In moving Amendment No. 104, I intend to accept Amendment No. 104ZA, which, although tabled by me, is to be moved by the noble Earl, Lord Russell, as it is not possible for me to
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move an amendment to my own amendment. So I ask leave to speak to the amendment as amended or as to be amended. I am obliged.
This amendment, as amended, would ensure that the substance of the grounds on which a certificate is issued by the Secretary of State would have to be made known to the person concerned, excluding any sensitive intelligence material for which a claim to privilege from disclosure would be made.
It would also ensure that all documents, materials and information on which the Secretary of State issued the certificate—the full grounds, whether or not subject to a claim for disclosure—should go before the judge on judicial review to decide whether the belief or suspicion of the Secretary of State under Clause 21 could have been reasonable; if not, to quash the decision or, as is often the practice, as the noble and learned Lord will know, to remit to the Secretary of State for further consideration.
The noble and learned Lord will also know that about six years ago there was a case in the European Court of Justice where there was no such review of the merits and no disclosure such as would have been ordained under the amendment. The court found that judicial review failed to provide adequate safeguards for the right of liberty in cases of deportation involving security.
I mention that at the outset because that case, which the noble and learned Lord will know, is wholly distinguishable and would not apply to the regime as proposed by the amendment under which the judiciary retains its constitutional function to contain abuse of power by the executive. The amendment is dependent upon retention of judicial review and habeas corpus. It requires that Clauses 30 and 31 do not stand part of the Bill. Having spoken to that on the amendment, by leave of Members of the Committee, I shall not speak to it again when it is moved.
The Attorney-General (Lord Goldsmith): I thank the noble Lord for giving way. As he rightly says, the question of the suitability of the SIAC review compared with judicial review forms part of a further grouping. I wonder whether it would be for the convenience of the Committee to deal with those matters together and to deal at this stage with that part of the noble Lord's amendment which relates to the provision of information which would then form the basis of either judicial review or SIAC. I simply put that before the noble Lord for consideration. I do not insist; I am in no position to do so.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord. I shall do anything that is for the convenience of the Committee. I thought that it would save time if I dealt with both amendments together. Amendment No. 104ZA will be moved by the noble Earl, Lord Russell. It is easier to deal with both at the same time as everybody has the Marshalled List and the supplementary list.

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The object will be that this essential requirement of natural justice will be fulfilled; that a decision of the executive, albeit on reasonable suspicion and belief, should be taken on grounds that are made known to the person affected by the decision. An examination of the adequacy of such grounds by the High Court is the essence of judicial review in this context. As the sense of this House, as expressed in Committee, was in favour of retention of judicial review, the substance of such grounds must be given. In the absence of such grounds, or any reason made known to the person affected, the High Court would quash the decision. The purpose of the amendment is to ensure, as I have said, that the substance of those grounds is made known to the person affected and is adequate to support reasonable belief and suspicion entertained by the Secretary of State.
It has not yet been understood by the noble and learned Lord, Lord Goldsmith, that it is not proposed that the grounds should disclose sensitive intelligence information which would prejudice and undermine security. One has only to refer to the exchanges initiated by me in Committee at cols. 280 and 285—I am grateful to the noble and learned Lord for his responses—to see that there was a clear misunderstanding as to the intent of my amendment. I hope that Chat misunderstanding will be clarified by the amendment to be moved by the noble Earl in due course.
As I have said before, it is wholly accepted that the certification under Clause 21(1) as amended in another place is requisite to detain and inhibit the propensity to roam and is a legitimate executive act taken on sensitive intelligence information, which must not be disclosed to anyone other than the High Court judge or judges on judicial review.
The information for which privilege from disclosure would he claimed under the amendment to be moved by the noble Earl would be handed to the judge to read, usually in his room, no doubt by an intelligence officer who had the file. The judge would give his ruling in open court. The High Court, as the Attorney knows well but the Committee does not, is wholly accustomed to dealing with claims of privilege from disclosure on grounds of national security. The grounds to accompany the certification would not disclose such material. They could merely refer to documents, information and material not disclosed for which a claim for privilege would be made.
My noble and learned friend Lord Mayhew of Twysden was concerned about the drafting of the amendment in the context of security, of which he has personal expertise as a former Secretary of State and Attorney. To meet that concern I had discussions with him to ensure that sensitive intelligence information was not disclosed in the written grounds which accompany the certificate to be served on the person so certified. I am grateful for the advice of the noble and learned Lord, who has not seen this draft, that in its original form this was perhaps too widely drafted. I commend this to the Committee in principle so that,
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in the light of debate, perhaps the form which it should take on Report may be considered, having regard to the fact that as a rule under SIAC's regime the formulation of grounds of appeal is not possible. That is done only on the advice of the specialist advocate who has the reasons and grounds for the decision by the Secretary of State with which the person has to deal and the grounds which have to be met on any appeal.
I am extremely grateful to the noble Lord, Lord Thomas of Gresford, for producing SIAC's rules of procedure. I do not propose to refer to them in any detail, save to explain that in the context of what is in effect a denial of justice it is the in-house special advocate who makes submissions to the commission in proceedings from which the appellant and his representatives are excluded. He cross-examines the witnesses in such proceedings, identifies points of law on appeal from SIAC and makes written submissions. But he may not communicate any of the information that he has about the grounds and material before the Secretary of State directly or indirectly to the appellant or his representative on any matter connected with proceedings. That is a most curious form of administration in a context for which it was not originally designed. It was designed for a totally different purpose. The Committee may well consider that to be wholly unfair, unsatisfactory, contrary to our concept of natural justice and no substitute for the safeguard afforded by judicial review. For that reason, it is essential that the jurisdiction of the High Court should not be excluded. I beg to move.
Earl Russellmoved, as an amendment to Amendment No. 104, Amendment No. 104ZA:
Line 4 of the amendment, after "entertained" insert "(without documents, materials, or information for witch privilege from disclosure will be claimed on grounds of national security)"
The noble Earl said: I beg to move Amendment No. 104ZA. I discussed this amendment with the noble Lord, Lord Campbell of Alloway, in general terms very late last night. The reason I did not put my name to it this morning was that my mind was momentarily on my job; otherwise, it would certainly have appeared in my name. I fully support that amendment and Amendment No. 104 which goes with it.
In Clause 21 we are concerned with one of the most difficult areas of the whole Bill. I refer to a conflict between right and right. I entirely understand why the Government want the clause. As the Minister put it in reply to the previous amendment, we do not want people who are a threat to our security and cannot be returned anywhere else to be at large on our streets and free to do any evil that they wish. I understand the Government's problem in that regard.
I also understand extremely well the difficulty of revealing sensitive security sources. On occasion that may involve a risk to life. That point is dealt with most clearly in Amendment No. 104ZA. When there is a leak, usually one does not track down exactly who has done it; one arrives at a short list of three or four, any one of whom might have done it. In certain criminal and terrorist organisations the emergence of that information may lead to the death of all four of those

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people. I remember cases when people, faced with a charge of leaking, have had to reply in the words of the Limerick:
"I sat next to the Duchess at tea,
It was just as I feared it would be.
Her rumblings abdominal were simply phenomenal,
And everyone thought it was me".
Granted that these evils need to be remedied, it is also true that detention without cause shown is an evil and has been recognised as such in English law for as long as that law has existed.
We are discussing here the question of how to choose the lesser of two evils. If there is any way in which this circle can be squared, which is what the amendment seeks to do, I believe that it should be tried. The general framework in which I seek to place the amendment is that set by the very interesting Second Reading speech of the noble Lord, Lord Brennan. He said nobody suggested that these people should be left at large but one wanted what was done to them to be under proper judicial protection. That can be only if there are reasons, known at the very least to the judge, which explain exactly why they are being detained.
In a case which occurred seven years before Magna Carta, King John arrested one of his barons. He gave as the cause for the imprisonment—I shall give the Latin so that Members of the Committee can check my translation if they want—quod super eum irate fuimus: because we were cross with him. That is something to which no judicial response can be made. It is essential to any judicial proceedings that there should be a charge which is capable of answer.
The other point about detention without cause shown is that it goes on longer than the terrorist threat. The noble Lord, Lord Corbett of Castle Vale, made the point that it may last indefinitely. But, what is more, it may remain on the statute book for decades, even centuries, after the need which gave rise to it.
It is, I think, well understood that judges are capable of hearing the most sensitive information with total confidentiality. I have with me a letter from the noble and learned Lord, Lord Donaldson of Lymington. He regrets that he is unable to take part in this stage of the proceedings on the Bill because he was already committed to be abroad. I shall not refer to the rest of it because it deals with the issue of judicial review. I accept what the noble and learned Lord the Attorney-General has said about that.
However, he draws my attention to one occasion when he held a judicial review case entirely in camera, not for security reasons but for financial ones. The consequences of the information coming out before the case was concluded could have been disastrous. That worked. I believe that our judges can be trusted in that kind of situation. They certainly have been in the past. I am not aware of any cases where we have been let down.
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The amendment proposes that a clear statement of the reasons should be given to judges. It provides for the judicial review procedure. That is important. I shall say no more about that. So it does a good deal to alleviate the problems created by Clause 21.
I shall not say that it removes them because I shall mention one more problem which concerns me, in the hope that someone in the House has the wisdom of seeing a way to tackle it. That is the problem of communicating the reasons to the suspect. I can see very grave difficulties in communicating reasons to the suspect. I entirely understand why the Government are uncomfortable about it—because they also may work out where the information came from.
On the other hand, the maxim that we must hear both sides is a fundamental part of natural justice. Although a lawyer and a judge may hear the information, if the suspect cannot it may be extremely difficult to answer it. In the words of the noble and learned Lord, Lord Ackner, in the case of Ridge v. Baldwin, what appears to be a man dead drunk in the gutter may in fact be a diabetic who has run out of insulin. If anyone can think of a solution to that problem I shall listen to it with great interest. I confess that I do not have one. However, if the amendment were adopted I believe that the clause would be very much better than it is at present. I beg to move.
Lord Avebury: Perhaps I may ask a question that has been troubling me as I have listened to the debate and most of the one before it. That is, let us suppose that one has an individual who has been before the courts and who has been convicted of an offence under the Terrorism Act 2000. The Secretary of State decides when he has reached the end of his sentence that it would still be a threat to our security to have him at large on our streets—as the matter was put by my noble friend Lord Russell. Would he then be able to issue a certificate on the basis that the man was plainly a terrorist having been convicted in the courts? Furthermore, would that not he subject to judicial review when everyone knew what the reasons were?
5.45 p.m.
Lord Goldsmith: I am happy to speak to the amendment as amended by the further amendment. There are two broad issues: first, the reasons for issuing a certificate—I shall deal with that and the different elements of the amendments; and, secondly, the question of the availability of judicial review. When I intervened in the speech of the noble Lord, Lord Campbell of Alloway, I was simply indicating that that general issue arises under Amendments Nos 124 and 125 and Clause 30 stand part, which have been grouped together. I am entirely in the hands of the Committee as to the right way to deal with it.
I first deal with the question of the reasons. It is important to note that Clause 27(6) of the Bill applies the provisions of the SIAC procedure rules to any,
"appeal, review or application which is made under sections 25 or 26".

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I make it perfectly plain that in referring to these provisions—as I now do—and in recognising the particular circumstances of the Bill, I express absolutely no criticism that I may be the first to refer to those rules. However, what I say in relation to them may allay—I hope entirely, but certainly substantially—concerns which have been expressed, because those rules which already exist to deal with the cases that SIAC handles have to cope with exactly the problem which the noble Lord and the noble Earl have so clearly set out, the substance of which I have no difficulty with.
Rule 10 provides that where there is an application, or appeal as it is at the moment, to SIAC the Secretary of State is required to submit to it a summary of the facts relating to the decision being appealed and the reasons for it. He has to inform the commission of the grounds on which he opposes the appeal and to provide it with the statement of the evidence which he relies on in support of those grounds. That first step deals, I hope, with the point made by the noble Earl, Lord Russell, which I entirely accept, that it is important that the judicial body which is scrutinising and reviewing—SIAC in this case—knows the basis on which the Secretary of State made his decision. Therefore, that information has to be provided to SIAC under the rules as it stands.
As the noble Earl, Lord Russell, said, there is a real issue that then arises. The issue that arises is that that may very well, and indeed is likely to, include some sensitive intelligence information which, for the reasons that he has given, it simply is not appropriate, without compromising national security, for the particular applicant to receive. I was grateful that the noble and learned Lord, Lord Mayhew of Twysden, with his great experience, having held the office that I am now privileged to hold, certainly seemed to accept that the other day, as did other Members of the Committee.
In those circumstances, the SIAC rules provide quite a convoluted but, I hope Members of the Committee will agree, a very satisfactory procedure for dealing with that situation. They involve various steps. The material from the Secretary of State will be passed by SIAC to the applicant unless the Secretary of State objects on the grounds of national security, or such like. If he does, the special advocate procedure is then invoked.
In response to a point raised by the noble Lord, Lord Campbell of Alloway, the special advocate is not properly characterised as an in-house lawyer. He is not a SIAC lawyer. He is an independent lawyer who is chosen from a list of experienced counsel. They are vetted so that they can see security information. His job is not to act for SIAC but to represent the interests of the applicant. Indeed, he is on a list which is held by my office, which identifies proper and appropriate people who are independent and who will do the job.
That person then sees all of that information, and there may then be a dispute about whether some of it should be provided to the applicant. The commission can consider that under SIAC's Rule 11. The rule
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states that, having considered the Secretary of State's objections, and having heard oral representations from the special advocate, the commission may be minded to overrule the Secretary of State's objection, or require him to provide material in a different form from that in which he has provided it already.
The effect of that is that the commission can conclude that, notwithstanding the objections, the information ought in fact to be passed across, or passed across in a different form, which may permit the provision of material in the form of a summary or gist that does not give rise to a problem with national security.
If the Secretary of State does not like that, he may simply not be able to rely on that evidence. That may be a problem for the Secretary of State, but I hope that the Committee will agree that that provides the answer to the problems that have been identified.
In summary, the appellant will have access to the information relevant to the Secretary of State's decision that is disclosable. He will not have access to sensitive information, but that will be available to the special advocate and, as I explained, the commission can require further information to be provided in a different form.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord, because it is perhaps easier to take the point in the context now, rather than leave it until later.
There is no obligation on the Secretary of State to give any grounds; it is purely discretionary. Can the Minister point to any obligation on the Secretary of State, or is it purely a matter for his discretion?
Lord Goldsmith: No, it is not. I mean no criticism by drawing the noble Lord's attention to Rule 10. That states:
"If the Secretary of State intends to oppose the appeal, he must"—
he must—
"provide the Commission with a summary of the facts relating to the decision being appealed … inform the Commission of the grounds on which he opposes the appeal; and … provide the Commission with a statement of the evidence which he relies upon in support of those grounds".
That is the material that the commission then considers in conducting its judicial scrutiny of the Secretary of State's decision and reaching its decision on whether or not the certificate should stand.
Lord Campbell of Alloway: How can the man form any sane and reasonable notice of appeal until he has been given really full information of the grounds upon which the decision has been made? This is what I find difficult to understand.
Lord Goldsmith: With respect, I do not think that that is so difficult to understand, for this reason. We are talking about a situation in which the Secretary of State has resolved that a certificate should be issued, with the effect that a person is then detained. Under

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those circumstances, I do not find it difficult to imagine that the immediate reaction of the person detained will be to take the Secretary of State's decision to SIAC to have its basis tested. That will immediately invoke the procedure.
Lord Neill of Bladen: Perhaps the noble and learned Lord could deal with a difficulty. We are continuing a dialogue that began on Monday night. I have what is really a probing question about the special advocate. In the ordinary way, an advocate, in making a submission or representation, is acting on instructions from a client. The special advocate will, as I understand it, not be in that position. He will be seeing material in the commission's possession that the accused—or whatever one cares to call him—will not have seen. The special advocate will have to address submissions to which his "client" may have an answer, but without knowing that answer because he has not been able to take instructions.
Lord Goldsmith: Of course I understand the noble Lord's point. I have used the words used by the noble Lord, Lord Lester of Herne Hill, in the debate on the derogation order earlier this month. He said that he regarded the SIAC procedure as a fair compromise. It is a fair compromise between the desire to ensure that the judicial body is in the best possible position to judge whether or not the certificate, and therefore the detention, is right and the need to avoid compromising national security by providing that information to the applicant. As the noble Earl, Lord Russell, said, that may give rise to most serious risks.
The noble Lord, Lord Campbell of Alloway, referred to a European decision made about six years ago. I should be grateful for his confirmation, but I think that he was referring to the case of Chahal.
Lord Campbell of Alloway: I was.
Lord Goldsmith: I am obliged to the noble Lord for that information. The case of chahal was the case that resulted in SIAC being set up, because the then procedure was, as the noble Lord rightly says, held to be inadequate because it did not provide the best opportunity for a judicial body to consider the material.
As I mentioned in my winding-up speech on Second Reading, the European Court of Human Rights drew attention to the existence of a Canadian model that it thought would solve the United Kingdom Government's problems. The Canadian model is the SIAC model. That is what was introduced as a result of the European Court of Human Rights saying that we could at least have something involving a special advocate procedure and a means of ensuring that material was considered. In the words of the noble Lord, Lord Lester of Herne Hill, whose views on such matters are of enormous influence and value, that is a fair compromise. As I understood it, he supported the SIAC procedure when it came before Parliament.
Lord Brennan: Will my noble and learned friend assist us better to understand the framework of the Bill? I understand the argument to be that the amendments are unnecessary because the appeal procedure under Clause 25 gives effective protection to the person involved. In deciding the effectiveness of that protection, can he confirm that under Clause 25, when the commission decides whether or not there are reasonable grounds for the Secretary of State's decision, it determines that objectively, on the facts available to it? It does not ask whether the Minister was subjectively justified in coming to such a decision. That is an extremely important question that reflects the great argument in Liversidge v Anderson in the second world war. Do "reasonable grounds" mean objectively or subjectively assessed?
Lord Goldsmith: Liversidge v Anderson, which has already been referred to, concerned a set of rules without the SIAC procedure, a special advocate or any of the safeguards in the Bill. My noble friend asks about the effect of Clause 25. Yes, it is objective, but I must return to that in the context of later amendments that concern the issue. I hope that we can return to that at that stage.
Lord Thomas of Gresford: With the greatest respect to the noble and learned Lord, surely the decision in Rehman, part of which I cited on Second Reading, demonstrates that the commission is gravely discouraged by the Judicial Committee of this House from interfering in any way with the subjective view of the Home Secretary when he issues the certificate.
Lord Goldsmith: I disagree with the phrase, "the subjective view of the Secretary of State". It is not the subjective view of the Secretary of State, it is a view based on evidence and reasonable grounds.
I stand by what I said when winding-up the Second Reading debate, which is pertinent to the debate about judicial review versus the S1AC procedure. There is no question but that the observations that the Judicial Committee of this House made in the Rehman case would apply absolutely to judicial review. It said that when considering the question of whether this, that or the other piece of information all put together amount to reasonable grounds for believing that someone is a security risk, the view of the experienced Minister—who, what is more, is democratically accountable through Parliament—must be paid the greatest respect.
That does not mean that the commission, having looked at the matter, is not able to say, "This is not a justified point of view at all". There is a subtle distinction between saying that it is an objective decision which SIAC must take, and saying, which I do not accept, that it would not be right to pay enormous respect to the view already reached by the Secretary of State. However, it would examine the evidence on which that was based.
6 p.m.
Lord Campbell of Alloway: To suggest to the Committee that because the Secretary of State is democratically elected he in some way administers more acceptable justice than is done in the High Court seems odd. It is perfectly plain, is it not, that under Clause 21 it is a wholly subjective decision of the Secretary of State. It may be taken on advice from intelligence, from his staff or whoever, but it is his own personal assessment, for which he takes responsibility. It is subjective. Surely, it is unrealistic to pretend that it could be objective. Could the noble and learned Lord deal with that?
Lord Goldsmith: I have been criticised by some for being over-generous in giving way, but I am happy to deal with all the questions. Perhaps I may respectfully remind the noble Lord that in winding up the Second Reading debate, the final words I used were intended to draw attention to the observations of the noble and learned Lord, Lord Hoffmann, in the Rehman case. He said:
"in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process".
Those are not my words; those are the words of the noble and learned Lord, Lord Hoffmann.
The only other point to deal with in relation to this issue is the question of timing as regards the provision of information. I have suggested to Members of the Committee that the highest probability is that the person detained will immediately apply to SIAC and will therefore receive material subject to the safeguards I have identified in the special advocate procedure. However, I am happy to tell the Committee that, although we do not believe that it is necessary to put anything on the face of the Bill, at the time a certificate is issued there will be provided for the suspected international terrorist an outline of the case against him to the extent that that can be done without risking the exposure of closed material. Therefore, there will be an indication at the time the certificate is there, and then when the appeal takes place the rules to which I have drawn attention will bite.
The Earl of Onslow: I thank the noble and learned Lord for giving way. What he has just said seems to be important. The Government will provide the information required but they will not place the necessity on the face of the Bill. Why not? If you are going to do it, if you think it is right, why not put it on the face of the Bill? If you are not going to do so, it means only that you think you can duck and dive and weave a bit later.
Lord Goldsmith: I invite the noble Earl to consider what I have said in response to these amendments.
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I have drawn attention to existing obligations which will apply and which will require, as the Bill stands, information to be provided. I had hoped that I was being helpful to Members of the Committee by indicating—
The Earl of Onslow: Perhaps I may—
Lord Goldsmith: If the noble Earl will allow me first to finish the point, of course I shall then give way to him. Given the existence of the rules, I suggest that it is not necessary to add to the Bill. However, I hope that the assurance I have given, which is on the record and which will be noted by SIAC and others, will meet the one slight point which remains from the amendment; that is, the timing point made by the noble Lord, Lord Campbell of Alloway.
I had hoped that my explanation was helpful. There are many other important matters to deal with in order to get the Bill right in the sense of hearing Members' concerns about it. I simply and respectfully hope that what I have said is sufficient to persuade Members of the Committee that the issue of the grounds, which it was right to raise, has been adequately covered. In those circumstances, I invite noble Lords to withdraw their amendments.
Lord Avebury: Before the noble and learned Lord sits down, will he answer my question about whether the Secretary of State has power to issue a certificate when a person has already served his sentence for a terrorist offence and whether it would then be subject to judicial review?
Lord Goldsmith: I want to be clear about the question which the noble Lord, Lord Avebury, poses. Would he be kind enough to repeat it? It is my fault entirely.
Lord Avebury: Yes. I was supposing that the person concerned had already served a sentence of imprisonment, had reached the end of that sentence and the Secretary of State decided that he was still a threat to national security. The Secretary of State then decided to issue a certificate in order to prolong that person's detention after the end of his sentence. In those circumstances, where the grounds on which the Secretary of State had reached his conclusion were obvious because he had been through a court of law, would that decision be subject to judicial review?
Lord Goldsmith: I am obliged to the noble Lord. First, everyone, whether or not they have served a sentence, would be in the same position; that is, the powers under Clause 21 of the Bill would apply. If the Secretary of State had reasonable grounds, a certificate could be issued.
As regards the procedure under those circumstances, it would be the same; that is, the SIAC procedure would apply rather than judicial review in the technical sense of the administrative court dealing with it.

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As regards the question of whether information would be provided, it would come back to the question of whether that was sensitive information. The commission, under the rules to which I have drawn attention, would be able to judge whether the truth of the matter was that it was all information which the applicant knew already and therefore there was no reason why it should be withheld from him. Indeed, I would expect that to be the decision which the Secretary of State would make in any event. However, if the Secretary of State had good grounds for saying that the information was sensitive, that would be examined by the commission and it would decide whether or not it should be passed to the applicant. I hope that that answers the noble Lord's question.
Lord Corbett of Castle Vale: Will the Attorney-General help me because I want to make sure that I have understood the position? As he will probably know, I am deeply dissatisfied about the absence of judicial review, but we shall return to that matter later. Has the noble and learned Lord just told the Committee that someone who has been charged, convicted and sentenced under what we will call "domestic" terrorism laws, in circumstances at the end of that sentence could then be pounced upon under the powers of this Bill? If that were the case, I should regard it as an absolute abuse of those powers.
Today, the Attorney-General has been at great pains, as he was on Monday, to tell the Committee that the only reason the Bill is needed is because there is insufficient evidence on which to take a case to court. Have I misunderstood what the Attorney-General has said?
Lord Goldsmith: I want to make three points in answer to my noble friend. First, I was responding to a hypothetical question that was being put quite fairly by the noble Lord, Lord Avebury. I was not indicating that that was the situation I envisaged behind the principal purpose of the Bill. Secondly, in circumstances in which someone who does not have a right to remain here has been convicted of a serious offence, the normal course would be that the court would, in any event, order deportation. The problem is that even at the moment a person who is ordered to be deported by the court sometimes cannot be—and cannot be because we are not prepared to send him back to a place where they will be killed, executed or tortured. We have exactly this problem at the moment where a court of law has said that someone should go, but we will not let that person go because we respect their human rights. However, I suggest that we cannot allow them to roam free in our society if there are reasonable grounds for believing that they will commit terrorist acts that would gravely damage the people of this country.
With due respect to my noble friend, I do not consider that response to suggest in any way that there is an abuse here. Rather, I suggest that it demonstrates the limited nature of this part of the Bill. It deals with immigration controls and with the situation where
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there is a right to deport someone not entitled to be in this country but in respect of whom, as verified by a judicial body, reasonable grounds have been established to believe that he poses a threat to our national security. Nevertheless, we could not deport him because we have regard to his right not to be sent back to a place where he may be killed or tortured.
Lord Maclennan of Rogart: Before the Attorney-General finally resumes his seat, perhaps I may ask him why he is not more responsive to the suggestion put by my noble friend Lord Russell that the requirement to disclose the grounds for the decision which lead to certification should be placed on the face of the Bill. However, the Attorney-General is right to invoke the name of my noble friend Lord Lester of Herne Hill, whose judgment in these matters I, too, very much respect.
I understand that my noble friend Lord Lester suggested that what was being proposed was a compromise. He did not suggest that it was a compromise incapable of further improvement. That is particularly the case in light of the consideration expressed by the noble Lord, Lord Neill of Bladen, regarding the limits of the role of the appointed advocate. It appears that, when reconsidering a review of the decisions reached by the Secretary of State, SIAC would be unlikely to come to a different conclusion, not only because of a natural sensitivity to the view of a responsible Secretary of State, but also because SIAC would not be able to hear from the subject his response to the case that has been made against him. If he is not able to communicate the charge or the circumstances surrounding it, then he cannot properly be informed to discharge the job of representation.
It is not a slight matter as to whether the requirement to disclose reasons is on the face of the Bill. It is very central.
Lord Goldsmith: The obligation to provide not only the reasons but also the material relied on by the Secretary of State to the commission and thenceforward to some extent to the applicant—I shall return to that point in due course—is included on the face of the Bill. It has been put into the Bill that the SIAC rules should apply, and those rules require that such information should be provided. No ambiguity whatever surrounds that point. Indeed, that was the point I sought to make in response to the noble Lord, Lord Campbell of Alloway.
Latterly I have sought to deal with a single and slightly different point; that is, whether at a slightly earlier moment in time the Secretary of State would undertake to provide a form of summary before the full information is provided as required by the statute. That is fundamental because, at the time when the appeal is brought, the Secretary of State is obliged to bring forward his case to SIAC. The only problem here is whether a part of that case could not be provided to the applicant because of sensitive issues of security. In those circumstances the fair compromise—I use again the words of the noble Lord. Lord Lester—is to do the

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best one can. The information could not actually be given to the person involved because the sources who originally provided the information could then be threatened with death or perhaps the methods of surveillance would be discovered and thus rendered incapable of further use to protect the people of this country.
The fair compromise reached in the Chahal case and taken from the Canadian experience is the special independent advocate. He will be able to communicate with the applicant, although he cannot reveal any sensitive information that he may been given. That would defeat the object. I shall read out the details of his function, which are set out under Rule 7.4:
"The function of the special advocate is to represent the interests of the appellant by—

(a) making submissions to the Commission in any proceedings from which the appellant and his representative are excluded;

(b) cross-examining witnesses at any such proceedings;

(c) making written submissions to the Commission".

I recognise that that may be a second best approach, but it is the best that can be done in order to balance the need to protect sensitive security information against the need for SIAC to be given the best possible means of being able to judge whether the grounds on which the Secretary of State reached a decision were justified.
I stand absolutely by the comments I made the other evening. This is not a poor substitute for judicial review; it is better than judicial review. The noble Earl referred to the case heard by the noble and learned Lord, Lord Donaldson of Lymington, where evidence was heard in camera. I assume that that was a situation where the applicant was also present in camera because he was privy to the information. As I said in response to the noble Lord, Lord Thomas of Gresford, the customary situation in the courts is that the only way in which sensitive information may be dealt with is for the courts to decide not to rely on it; they have no procedure in place to use such information without the applicant also seeing it. SIAC provides a way of achieving that objective.
6.15 p.m.
The Earl of Onslow: The noble and learned Lord has concentrated, quite reasonably from his point of view, on the degree of protection that would be conferred by the use of these powers. Can he give the Committee a specific example of something that either would or would not have happened without the use of the new powers?
Lord Goldsmith: I thought that the noble and learned Lord, Lord Mayhew of Twysden, put it very clearly in our previous debate when he asked what people would think of the Government if we had known that someone was roaming around who posed a threat, was potentially or actually planning terrorist
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attacks and we allowed that to take place. Later people would comment, "You knew all about it, but you let it happen".
The Earl of Onslow: I have not asked the Attorney-General to repeat what was said by the noble and learned Lord, Lord Mayhew of Twysden; I have asked a specific question. The Attorney-General has advanced his argument and I think that the Committee is entitled to an answer.
Lord Campbell of Alloway: I am grateful to the noble Earl for allowing me to interrupt. However, does he not agree that perhaps we ought to get on with the amendment?
For reasons of economy, I shall not take long to make my remarks, but I should say that I have no intention of withdrawing the amendment. A fundamental principle is at stake in this which has not been addressed; that is, the question of judicial review. There it is, included in the amendment in black and white. I do not refer to SIAC but to judicial review. We have not even entered into the essence of that discussion, save that put forward with the assistance of the noble Lord, Lord Neill of Bladen, whose intervention was of crucial consonance on one aspect. To put it in simple terms, the representation of the client does not accord with the full requirements to which we are accustomed. Here I synthesise the noble Lord's argument. Furthermore, it does not accord with the way in which justice is administered on judicial review, and so on and so forth.
As I have said, there is certainly no question that the amendment will be withdrawn. I concede that there is no sense in playing with the concept put forward by the noble Lord, Lord Lester of Herne Hill, because I do not regard justice as administered on judicial review or by the High Court as a form of compromise. It may be that commercial arbitration is, but not justice administered on judicial review.
Whether or not it is fair as a compromise is totally beyond the point. I am concerned—and no one has said why it should be done—that the Bill excludes the jurisdiction of the judiciary in this area. I shall read and study, as a matter of courtesy and enlightenment, what the noble and learned Lord and other noble Lords have said today, and I shall come back to the matter on Report. I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Ampthill): The noble Lord will remember that we are not dealing with his amendment but with the amendment of the noble Earl, Lord Russell.
Earl Russell: I therefore beg leave to withdraw Amendment No. 104ZA.
Amendment No. 104ZA, as an amendment to Amendment No. 104, by leave, withdrawn.
Lord Campbell of Alloway: I beg leave to withdraw Amendment No. 104.
Amendment, by leave, withdrawn.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 104A:
Page 10, line 39, leave out "international"
The noble Lord said: This is a consequential amendment. It was spoken to with Amendment No. 103B, which has been determined by the Committee. I beg to move.
On Question, amendment agreed to.
[Amendment No. 105 not moved.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 105A:
Page 10, leave out line 42 to end of line 2 on page 11.
The noble Baroness said: I move Amendment No. 105A only to learn what the Government have to say in relation to Amendments Nos. 107 and 110. I hope to be reassured that these government amendments deal with concerns which were raised at Second Reading in your Lordships' House and which were the subject of considerable debate by honourable Members—including the Secretary of State's Back-Benchers—in another place. It was felt that the link is far too widely drawn. It could, albeit inadvertently, draw in entirely innocent individuals who may be members of a group which appears, on the face of it, and to some of its members, entirely bone fide, whereas in fact it is a front for something much more sinister.
I reserve my right to come back on these amendments. I beg to move Amendment No. 105A.
The Deputy Chairman of Committees: I must remind the Committee that, if the amendment is agreed to, I shall be unable to call Amendments Nos. 106 and 107.
Earl Russell: Before the Minister rises to reply, perhaps I may thank him very warmly for Amendment No. 110. It meets an undertaking that he gave to me at Second Reading and I should like to thank him.
Lord Rooker: I can assure the noble Baroness that all my honourable friends in the other place are delighted with these two amendments. I hope that the members of the Select Committee are also delighted.
An issue was raised in regard to family members. We believe that Amendment No. 107, by removing the words,
"a person who is a member of or belongs to"—
Lord Elton: If the Minister will forgive me. I think we are a little adrift. My noble friend has moved Amendment No. 105A. Perhaps the noble Lord is firing off his speech a little too early by referring to Amendment No. 107.
Lord Rooker: It is grouped with Amendment No. 105A.
Lord Elton: I am sorry. I failed to mark the grouping.
Lord Rooker: I am not moving it because it is not the lead amendment. I am only speaking to it at the moment. I was on a real roller there.
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There were genuine concerns about the links described in Clause 21(2), where the definition clearly could be too wide. There have been examples in the media. Osama bin Laden's distant family relatives, about ten times removed—who are estranged from him, who have denounced him, who have nothing to do with him—could clearly be covered by paragraph (c). It cannot be right for the definition to be as wide as that.
If Amendment No. 107 is agreed to, paragraph (c) will read:
"has links with an international terrorist group".
Amendment No. 110 seeks to insert a further paragraph below paragraph (c), which states:
"For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it".
So the amendments seek to remove the remotest possible link—for example, connections through family, friends, school, business, or sitting next to someone on a bus—from the clause. It then goes on to define the link as someone who supports or assists a terrorist group.
I believe these two amendments will satisfy the concerns raised by the Select Committee, in the other place and in your Lordships' House in our earlier debates.
Baroness Buscombe: I am grateful to the Minister for that reassurance. We have got rid of what one might dare to call the weakest link. It gives us great pleasure to withdraw Amendment No. 105A and to welcome and support Amendments Nos. 107 and 110.
Amendment, by leave, withdrawn.
[Amendment No. 106 not moved.]
Lord Rooker Lord Rooker moved Amendment No. 107:
Page 11, line 1, leave out "a person who is a member of or belongs to"
On Question, amendment agreed to.
[Amendments Nos. 108 and 109 not moved.]
[Amendment No. 109A not moved.]
Lord Rooker Lord Rooker moved Amendment No. 110:
Page 11, line 8. at end insert—
"( ) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it."
On Question, amendment agreed to.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 110A:
Page 11, leave out lines 12 and 13.
The noble Lord said: This is a consequential amendment. It was spoken to with Amendment No. 103B and determined by the Committee. I beg to move.
On Question, amendment agreed to.
[Amendment No. 111 not moved.]
Clause 21, as amended, agreed to.
Clause 22 [Deportation, removal, &c.]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 112:
Page 11, line 24, leave out from "terrorist" to end of line 29 and insert "if—

(a) his removal from the United Kingdom would violate international obligations not to subject him to the risk of torture, inhuman or degrading treatment or punishment, or the death penalty, or

(b) travel by him from the United Kingdom is not feasible."

The noble Lord said: This is a probing amendment which seeks to define the meaning of Clause 22(1). As currently expressed in the Bill, the words refer to,
"a point of law which wholly or partly relates to an international agreement, or …a practical consideration",
as reasons why a terrorist cannot be removed from the United Kingdom.
I have read everything that has been written by the Government in relation to this clause, and on every occasion they have referred to the Article 3 prohibition on removing an individual to a regime which would subject him to the risk of torture, inhuman or degrading treatment or punishment, or the death penalty. In relation to the practical consideration., it has always been illustrated by the difficulties of deporting a detainee back to a particular country where he wants to go. I have not heard any other examples given. Instead of leaving this rather vague form of wording in this clause and in the linked part of Clause 23, the Government should spell out whether they have in mind any other area—other than Article 3 and other than travel arrangements.
My fear is this. If the wording is left as "a practical consideration", the Government may say to a detainee: "All right, you want to go back to a rogue state but, unfortunately, no plane flies there directly. You would have to change in Paris, or wherever. Therefore, we cannot deport you and we are going to subject you to indefinite detention". Is it the position that, if there is no direct flight, the detainee will remain subject to the provision in this clause? I just want to hear the answer to that point. I beg to move.
6.30 p.m.
Lord Goldsmith: Perhaps I may return to the wording in Clause 22(1) as it stands. It has been made clear by the Government that, where someone is a threat to national security and we cannot prosecute or extradite that person to a country that can prosecute, the Government's preference is to remove the person from the United Kingdom. Indeed, we currently do all that we can to find ways in which a person can be removed to his or her own country, or to a safe third country, consistently with our international obligations. That determination to find avenues of removal will not be diminished in any way by the taking of the detention powers in the Bill. Only after all the avenues for the removal of a suspected terrorist have been exhausted shall we look to fall back on the powers in Clauses 22 and 23.
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As Clause 22(1) states, there are two particular types of barrier to removal: legal and practical. I draw the attention of the Committee to the words in Clause 22(1):
"the action cannot result in his removal from the United Kingdom because of",
one barrier or the other. It is a strong obligation: it is not that removal is not desirable but that he cannot he removed for that reason.
The Government believe that the wording in the Bill as drafted captures the barriers, which are the barriers that exist. To change that wording would add nothing and could be disadvantageous. That is obviously not to say that the noble Lord is not right in identifying, as his amendment seeks to do, the two particular circumstances that arise at present. It is certainly not the case that the clause would operate merely because the only way to get to the country for deportation was to change planes in Paris. It is not about direct flights. Indeed, the situation at present, as I understand it, is that there are circumstances where people are removed and where there has to be a somewhat more circuitous route to get to the country where they have to go. I hope that that reassures the noble Lord, Lord Thomas, on that point.
The first part of the amendment takes its wording from Article 3 of the European Convention on Human Rights as the first ground. That is the ground that the present impediment to removal on legal grounds. But there is the possibility that our international obligations might to some extent change. I know of nothing at the moment that might bring that about. If those international obligations prevented the preferred course of deportation, then the wording would cover that. But there is nothing that I am aware of at present that is envisaged by that. I hope that the noble Lord will be content with that assurance and will feel able to withdraw the amendment.
Lord Avebury: There are certain countries to which we do not deport failed asylum seekers at present. Among those are Afghanistan and Somalia. Perhaps the noble and learned Lord will correct me if I am wrong. Clearly, there would be practical difficulties in sending people back to either country. It is not that it is impossible to imagine travel arrangements to either—theoretically, people could travel to a neighbouring country and cross the border on foot, as many do. But the Government, in their wisdom, have decided that it is not fair to send anyone back to the conditions that obtain in those countries. I suppose that we could spell out in more detail what criteria the Government will adopt once these powers come into effect. Presumably they will be similar to those that are exercised at present.
Perhaps I may take this opportunity to ask the noble and learned Lord a question about the situation of Afghan citizens. A case is presently before the court where it was proposed to issue deportation notices against Afghans and it was not possible to proceed because the Immigration Appeal Tribunal decided not to entertain the application by the Secretary of State. The Secretary of State then applied for judicial review

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of the Immigration Appeal Tribunal's decision on the grounds that it was its business to decide only whether a deportation order should be made and not the question of destination. The Secretary of State had already said that he would not send that person back to Afghanistan. He could not specify any alternative third country because, although great efforts had been made by the Home Office, no third country had been found which would receive him. Has that case been determined? If the Immigration Appeal Tribunal continues to refuse to hear deportation cases where the Secretary of State is not able to specify a destination, that will make it difficult for the powers in this clause to be used.
Lord Goldsmith: I understand that the case has not been concluded. As regards the powers in the Bill with which we are concerned, where by reason of legal impediment or practical consideration we cannot remove a person although we should like to do so, I respectfully suggest that in such circumstances what the noble Lord, Lord Avebury, has said may be further support for leaving the wording of the Bill as it stands, rather than trying over-prescriptively to define it.
Lord Thomas of Gresford: I am grateful for the explanation that has been given in relation to the travel arrangements; namely, that the Bill does not require the existence of a direct flight to the place to which the alleged terrorist can go.
I raised the matter because it struck me as rather odd that a person coming to this country who is suspected of being a leading member of Al'Qaeda—he is only suspected; it cannot proved—can be detained under the Home Secretary's certificate; and he can say, "You can't detain me any longer. I want to go back to where I came from", which may be some rogue state in the Middle East. The Government say, "Oh, that's fine. Goodbye. We'll put you on a plane. Change in Paris, or wherever, and that will see you home". So I am glad to hear that difficulties in travel or circuitous routes will not be used as an excuse indefinitely to detain a person in those circumstances.
I asked whether there were any other illustrations of the point of law as regards the practical considerations set out in sub-paragraphs (a) and (b) of Clause 22(1). The noble and learned Lord the Attorney-General has not been able to point to any. In those circumstances, I wonder why he cannot accept the wording as it stands. Even if there were a change in international obligations, I am sure that the United Kingdom would still be required not to send any person to a place where they would be subjected to a risk of torture or inhuman or degrading treatment.
I shall come back to the amendment, but for the moment I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 113 not moved.]
Clause 22 agreed to.
Clause 23 [Detention]:
[Amendment No. 114 not moved.]
Lord Dholakia Lord Dholakia moved Amendment No. 114A:
Page 12, line 24, at end insert—
"(3) This section shall apply only if the Secretary of State has taken all reasonable steps to avoid the necessity for detention; and such steps shall include the consideration of bringing a prosecution under existing criminal laws or finding alternative countries as removal destinations (or both).
(4) Detention shall only be lawful as long as the Secretary of State continues to take all reasonable steps in accordance with subsection (3).
(5) The longer the period of any detention under this section, the greater the requirement shall be for the Secretary of State to show that such detention remains strictly necessary in the interests of national security."
The noble Lord said: The amendment would not delete the provisions of the clause. As the Secretary of State has draconian powers, we thought that certain safeguards were needed. We are proposing that the Secretary of State should ensure that every reasonable step is taken to avoid unreasonable detention, because that is what we are dealing with. We suggest that one step should be the consideration of bringing a prosecution under existing criminal laws or finding alternative countries as removal destinations. That is a reasonable request. Further, we suggest that the detention should be considered lawful only as long as the Secretary of State continues to take all reasonable steps in accordance with subsection (3).
The longer the period of detention under the clause—it could go on for a considerable time—the greater the requirement for the Secretary of State to show that it remains strictly necessary in the interests of national security. I beg to move.
Baroness Buscombe: I sympathise with the purport of the amendment, but we believe that the first part, in relation to reasonable steps, has already been covered and we shall look to the Minister to reassure us that, on the second aspect, he will always do as the amendment suggests.
The Lord Bishop of Portsmouth: I am grateful to the noble Lords, Lord McNally and Lord Dholakia, for producing this amendment and the next but one, to which it is clearly related. It meets a number of concerns about what appears to be an unnecessarily wide range of powers, centralised in the hands of the Secretary of State. The amendment would add an important dimension of restraint to the Bill.
Subsection (3) would ensure that the Secretary of State could not act summarily, putting the measure in the context of existing law. Subsection (4) would ensure that the Secretary of State had to be seen to be acting constructively on behalf of the detainees. Subsection (5) would ensure that any detention was not normally indefinite.
The amendment would meet the concerns to which I have referred without blunting the real aspirations of the Bill. It has a great deal of support from these Benches.
The Earl of Sandwich: I have a more general question for the Minister. Some of us find that wider questions are raised simply because this part of the Bill deals with immigration and asylum. Noble Lords will remember that when we considered the Immigration and Asylum Act 1999, we asked for written reasons for the detention of those who were kept for long periods of 12 to 18 months. That is not indefinite detention, but it is not an inconsiderable length of time. What happened to Part 3 of that Act, which provided for automatic hearings for all immigration and asylum detainees?
We have had some answers, but they have been in the form of a checklist. It is surprising that in 2001 we are not even giving our immigration and asylum detainees the reasons for their detention. A checklist is not an adequate statement under any international convention. I hope that the Minister will look seriously at that problem, although I recognise that it is wide of the clause.
6.45 p.m.
Lord Avebury: I would be rather more enthusiastic about supporting the amendment had it not been for the earlier answer from the noble and learned Lord the Attorney-General to a question that I put concerning the power of the Secretary of State to continue detaining somebody after the end of his sentence. If the amendment were passed and the Secretary of State leaned over backwards to find some means of prosecuting such an individual, at the end of the sentence the Secretary of State could still continue the suspect's detention ad infinitum on the ground that he still believed him to be a threat to national security.
The situation reminds me of the South African 90-day laws, under which somebody could be detained for a certain time and then have his detention prolonged further at the end of that time. We now learn that, after the person has finished his sentence, the Secretary of State can prolong that sentence by the certification procedure, as the noble and learned Lord has explained.
The noble Lord, Lord Rooker, looks rather unsteady in his place. Perhaps he wants to intervene.
Lord Rooker: I thought that the noble Lord was sitting down and I was going to respond, but it appears that he had not finished.
Lord Avebury: I had not finished. I was going to make a further important point. What happens when a certificate has been issued by the Secretary of State because the Government do not believe that there are sufficient grounds for the CPS to have a reasonable chance of securing a conviction, but part way through the period of detention under the certification order, further evidence comes to light that leads the Secretary of State to believe that a conviction could be secured? Is the certificate then withdrawn so that the case can be handed over to the CPS and the individual can be prosecuted as he would have been if that evidence had been available in the first place? If so, will the Minister say something further about the revelation by the
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noble and learned Lord the Attorney-General that after the end of the sentence, another certificate could be issued to prolong that sentence still further in an administrative way? A person who had been certificated and then prosecuted when evidence became available could serve his sentence and then have a second certificate issued against him by the Secretary of State on the ground that he was still a threat to national security, enabling his detention to be prolonged ad infinitum.
The Earl of Listowel: On a point of information, will those detained under this arrangement be held in similar circumstances to those on remand or to those on sentence?
Lord Blackwell: On a point of interpretation, the amendment and the clause read as if detention is an alternative if removal from the country is not possible. I see nothing in Part 4 that refers to the citizenship of the individual. Part 4 is entitled "Immigration and Asylum". Does that mean that the procedures will be relevant only for a non-UK citizen?
Lord Rooker: To answer the last question, the answer is yes—as I tried to labour in the previous debate. This measure is solely concerned with people whom we want to remove from the country if we cannot prosecute them. We cannot remove United Kingdom citizens from the United Kingdom.
The noble Earl, Lord Listowel, asked where people will be detained. I can only repeat the answer that I gave him the other night. Persons who are detained under the procedure, if any, will not be held on the immigration detention estate. There are five immigration removal centres, previously detention centres. The few people there are detained prior to removal. The chances are that persons detained under the new procedure will be in high security prisons. Such persons will be suspected international terrorists. They will not be people who have absconded from the Immigration Service, but those who are "copper-bottom" suspected of major offences. If they choose not to leave the country or cannot do so and are detained, they will be locked up in a suitable institution—a prison.
Lord Monson: I do not think that the Minister understood my noble friend's question. He was asking whether detainees would be held under gaol conditions or bail conditions—which are more relaxed. The location could still be a high security prison. It is a question of the conditions under which detainees will be held in such a prison.
Lord Rooker: I cannot answer that in a technical sense. The detainees will not have been convicted but will be held under a procedure whereby they can walk out of the prison any day they choose, provided that they can leave the country. To that extent, the procedure is more relaxed than being locked up. We do not say where prisoners are held because that is a privacy issue, but such information will not be kept

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secret from their legal advisers and relatives, who will be able to visit. Detainees will be deprived of their liberty, but in a unique situation.
We have not yet made a decision on Part III of the Bail Act 1976 and I regret the delay.
I can now tell the noble Earl, Lord Listowel, that detainees will be held under remand conditions.
The thinking behind the amendments is understandable, We have made it clear on a number of occasions that detention under Part 4 will only be used for a limited number of people, where no other response is possible. If we consider that there is sufficient admissible evidence to bring a prosecution, we will seek to do so at any point in the process. If we can prosecute, we will. That is our first priority. Our second priority is to remove the individual. It may be that one process is used, then evidence becomes available. One has to assume that we would take action on those lines.
Lord Avebury: I thank the Minister for clarifying that point. I understand that if part-way through the individual's detention under certificate it becomes possible to prosecute him, that will be done. Will the time spent in detention under certificate count against the subsequent sentence?
Lord Rooker: A certificate can be revoked at any time. That is for the Secretary of State. I assume that detention under certificate will be taken into account on the ground of natural justice, where someone has been locked up and deprived of his liberty. I cannot speculate on cases, but that would be the general view, I hope, of the western liberal democracy that we are trying to protect in this clause. That is what this is about. It is all about protecting our right to make such decisions, which some people are trying to take away by the use of international terrorism.
We shall prosecute if there is admissible evidence. We shall do all we can to find a way of removing someone from the country, including an assessment of possible safe third countries. We shall, of course, abide by our international obligations, as the Attorney-General has made clear. I hope that there is no doubt about the Government's sincerity.
A separate question is whether it should be stated as a requirement of the Bill that the Secretary of State will not detain someone under Clause 23 unless, for example, he has done all that he reasonably can to bring about a criminal prosecution. That sounds seductive but if there is to be such a test, the implication is that SIAC will review the Secretary of State's compliance with that test and others set out in Amendments Nos. 114A and 114C.
We strongly argue that the question of whether or not a criminal prosecution is to be brought is not for SIAC or within its competence but is for the prosecuting authorities. Some have questioned SIAC's competence to consider detention matters under Part 4. The demands made upon SIAC by the Bill as drafted are ones with which it is eminently competent to deal.
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I do not see SIAC or any other court as an appropriate body for making judgments about the sufficiency of evidence upon which to bring a prosecution. That matter is for the Crown Prosecution Service. It will already have reached the view that there is insufficient evidence and that it is not in the public interest to prosecute.
Independent discretion is an issue of constitutional importance and is covered by the guidelines applying to the Crown Prosecution Service. Such discretion is totally inappropriate for a body such as SIAC, which has no expertise in the criminal field. The implications of a body such as SIAC deciding that there is sufficient evidence to bring a prosecution, notwithstanding the objection of the police and CPS, would taint the individual with a "guilty" label before he or she even got to court.
The fact that a criminal court can dismiss a prosecution on the basis of insufficient evidence is a right and proper safeguard for the accused. However, to give a non-criminal court the power to influence the bringing of a prosecution in the face of police and CPS objections, which is implicit, is totally different. Under the amendment, it might be that SIAC would not be proposing to the Secretary of State that a prosecution should be undertaken but stating that there were still avenues to be explored before that option should be ruled out. The constitutional question that that raises might be less stark, hut the same principle applies: those matters are not for SIAC.
I make it absolutely clear that if removal were possible now, we would be removing such persons. If removal were a realistic possibility, we would detain under the existing immigration detention powers while we investigated the possibility of removal.
It is unpleasant to have to appreciate that currently, foreign nationals who are charged, prosecuted and convicted of a serious criminal offence such as rape or murder, and for whom the court issues a recommendation for deportation, may not be liable for deportation after serving their sentence if we are unable to return them to their country of nationality. If such persons have served their sentence and we cannot send them back, what do we do? It is distasteful, but we have to let them out. We cannot remove them—and it is known that we cannot remove them—because the courts have already said that if one is knowingly not processing a removal application or passport and travel documents and there is no country for the individual to go to, the authorities have no right to detain.
Occasionally when persons finish their sentence, we do detain them because there is a good prospect of removing them. That may take a while. Some countries are a bit dodgy. Sometimes it is a question of getting the necessary travel documents from the country concerned. That is not always a five-minute job.
Lord Corbett of Castle Vale: May I try to help the Minister?
Noble Lords: Oh.
Lord Corbett of Castle Vale: I just want to remind my noble friend and the Committee that we are in the process of considering double jeopardy. Were that to be introduced, it could deal with the exact circumstances that my noble friend described and the difficulties that arise from them.
7 p.m.
Lord Rooker: It is still an issue that we cannot deport people who are nationals of certain countries, even if they have committed the most heinous of crimes. That is the situation we are in. We are trying to avoid that situation by this legislation. But that is our difficulty in relation to international terrorists.
My points related to the general criminal fraternity. But that is the situation. When listening to Members of the Committee, one could be misled into thinking that we do not lock anybody up after they have served their detention and prior to their removal. We do. But we have to be going through the removal process at the time they complete their sentence. If the courts, the judiciary and the solicitors know that no country will take the individual involved, then they are released immediately because we have no powers to detain people in those circumstances.
The amendment asks that the Secretary of State,
"has taken all reasonable steps".
I can assure Members of the Committee that the Secretary of State will have taken "all reasonable steps" to deport people and will have been through that process before issuing the certificate. We would not want to go down that route. If we could not prosecute we could get them out of the country. It is only because we cannot get them out of the country that we issue the certificate in the first place.
Therefore I understand the motivation behind the amendment. But the Committee would be misguided to accept it. I hope that, in the light of my probably inadequate explanation—I put it in a fairly stark way—the noble Lord will not press the amendment.
The Earl of Listowel: Before the Minister sits down, I thank him for his response to my question. The prisoners will be on remand and will therefore be able to have more frequent visits from their families. As was said in the Second Reading debate, that will probably be mainly in maximum security prisons.
A concern has been raised with me that when a closed visit takes place—there is no direct physical access to the inmate—a woman may be strip-searched twice before reaching the prisoner. We may well be talking about Muslim women in this regard. As we are discussing people who are detained, will the Minister undertake to look carefully at that issue and see whether changes can be made?
Lord Rooker: The rules are the rules and everybody will be treated exactly the same. Those people will be locked up. I have to warn the noble Earl that there are not that many suitable prisons. It will do no good saying we have to put them in local prisons, because it will not work that way. These are highly refined
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international terrorists and will be detained in suitable prison accommodation with suitable restrictions and constraints on those who visit them. But they will be held under remand conditions. A unique operation will be taking place and hopefully it will not apply to many people. However, there will be a few.
Lord Phillips of Sudbury: Before the Minister sits down, it is not a minor point to say that he talks about "highly refined international terrorists". But they are only suspected of terrorism and we should not forget that in this debate.
Lord Dholakia: I thank the Minister for his explanation. Perhaps I may remind him that he constantly bases his case on the premise of international terrorists. But at Second Reading the noble Lord, Lord Rooker, said that during the Gulf War almost all the people detained—Palestinians, Arabs and Iraqis—were eventually found not to be terrorists at all and had to be paid compensation.
I shall study the Minister's response carefully because there are some difficulties in interpreting many of his remarks. I shall read Hansard carefully and, if we are still not happy, we may come back to this matter on Report. In the mean time I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 agreed to.
Clause 25 [Certification: appeal]:
Lord Goodhart Lord Goodhart moved Amendment No. 114B:
Page 13, line 3, at end insert—
"( ) A suspected international terrorist who has appealed under subsection (1) shall, within 7 days of the appeal being lodged with the Commission, be brought before the Commission for the purpose of the Commission giving directions as to the hearing of the appeal."
The noble Lord said: The purpose of Amendment No. 114B is to ensure that, where somebody is certified as a suspected terrorist and therefore detained, and submits an appeal to SIAC, they are brought before SIAC within seven days of their appeal being lodged. Its purpose is to ensure that a suspected terrorist is brought before a judicial body within a reasonable time of entering the appeal.
Amendment No. 114B is based on a recommendation by Justice, which made a reference in its background notes to the case in the European Court of Human Rights of Aksoy v Turkey, where it was held that, although there was a genuine state of emergency, the fact that a person who had been detained was not brought before a judicial body within 14 days entitled that person to complain of a breach of human rights. It held that the period of 14 days was excessively long.
The focus of this amendment, therefore, is to ensure that the period before the suspected terrorist is brought before the commission is no more than seven days. The amendment tabled by the noble Lord, Lord Corbett—Amendment No. 114D—says that not only

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should they be brought before the commission, but also that the appeals should be heard within seven days.
Lord Corbett of Castle Vale: Would the noble Lord kindly do me the favour of hearing the argument before he pronounces on whether or not he likes my amendment?
Lord Goodhart: I have to explain why I am putting forward an amendment which is different from that of the noble Lord. Perhaps he would like to treat his amendment as being grouped with mine. He could then put his argument and I could come back to it after the Minister has spoken.
In ordinary criminal procedure there is often a lengthy period between somebody being charged and detained, and the time at which the trial is heard. Subject to what the noble Lord, Lord Corbett, has to say, in a considerable number of cases that would apply to the SIAC procedure as well. But it is important that the person who is in detention should be brought before the judicial body rapidly; that the judicial body should be able to give directions quickly. Obviously the hearing should be as soon as is reasonably practicable. In an exceptional case, where there was strong evidence that the detainee should not have been detained at all—clear evidence of misidentification or something of that kind—then no doubt the commission could even give directions to have a hearing on the spot.
Amendments of this kind are important and necessary if we are to avoid being in breach of the Human Rights Act, in respect of which the derogation does not itself apply. The fact that there has been a derogation authorising the detention does not relieve the authorities from the necessity of seeing that the detainee is brought before the relevant judicial body with all reasonable speed, as the Aksoy case makes clear. I beg to move.
Lord Corbett of Castle Vale: Just so there is no misunderstanding, I understand what the noble Lord, Lord Goodhart, means and agree with him. But my amendment is on an entirely different, though related, matter.
Baroness Buscombe: I rise simply to support Amendment No. 114B. We would like to hear the Minister's response and hope he will give cogent reasons if he is not minded to accept the amendment.
Lord Goldsmith: Amendment No. 114B would require SIAC to convene within seven days of the lodging of an appeal to give directions as to the hearing. There is nothing particularly objectionable in that. My point is that it should be for SIAC to determine its own timetable.
I take the point that the noble Lord, Lord Goodhart, makes: that there is a human rights obligation. I imagine that he has in mind Article 5(4) which would require that the lawfulness of detention
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should be decided speedily by the court. The important issue is that SIAC will be resourced adequately to ensure compliance with that obligation.
Once the Bill is passed there will be much for SIAC for to do. There will be bail applications—one of the matters provided for under the Bill—appeals against certification and appeals which will no doubt include separate direction hearings against immigration decisions.
While recognising the overriding obligations which would apply to SIAC as well as a public authority, it would not be right to impose an obligation to convene simply to give directions for a hearing. Of course, SIAC might decide that it wanted to do so but that would be for it to decide fully recognising the obligations, as I am sure they would, under Article 5(4). For that reason, I resist the amendment.
Lord Goodhart: I am sorry that the noble and learned Lord the Attorney-General is not prepared to accept the amendment. He plainly understands that if SIAC does not act speedily—I think that seven days is likely to be regarded as a maximum for the initial directions hearing—this country will undoubtedly face serious problems with the Human Rights Act and the European Convention on Human Rights.
Lord Goldsmith: If the noble Lord will kindly give way, having seen the appeal and the Secretary of State's reasons, SIAC may take the view that there is no need for a directions hearing. It may want to say that there shall be a full hearing in five or perhaps 10 days. To put on the face of the Bill an obligation that it should convene a directions hearing could impose an obligation on it which would simply add to its and others' burdens.
Lord Goodhart: I am grateful to the noble and learned Lord for that elucidation. He refers to going straight to a full hearing. It is necessary to deal with that very quickly. If the hearing is to be deferred for a matter of some weeks or even months, there must be an arrangement for bringing the detainee before the court. It is clear that a judicial body must be seized of the matter very quickly because that is plainly the case with criminal proceedings. In detention proceedings that is no less important.
I do not wish to press the matter. The point has been made. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Lyell): Before I call Amendment No. 114C, I must advise the Committee that if it is agreed to I shall not be able to call Amendment No. 114D.
Lord Dholakia Lord Dholakia moved Amendment No. 114C:
Page 13, line 4, leave out subsection (2) and insert—
"(2) On an appeal the Commission must cancel the certificate if—

(a) it considers there are insufficient grounds for a belief of the kind referred to in section 21(1)(a) or (b);

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(b) it considers that the issuing of the certificate was not in accordance with the law, or that the Secretary of State should have exercised his discretion differently;

(c) it considers that for some other reason the certificate should not have been issued; or

(d) the Secretary of State has not taken all reasonable steps to avoid the need for detention."

The noble Lord said: This is another amendment on certification and appeal. We suggest further safeguards against the substantial powers of the Home Secretary. We propose to include in the clause that the commission must cancel the certificate if,
"it considers that the issuing of the certificate was not in accordance with the law, or that the Secretary of State should have exercised his discretion differently",
and if,
"the Secretary of State has not taken all reasonable steps to avoid the need for detention".
I beg to move.
7.15 p.m.
The Lord Bishop of Portsmouth: Like the previous amendment, this amendment is about restraint and is to be welcomed. If it is not pressed, I hope that the conversations alluded to earlier between the noble Lord, Lord Dholakia, and the Minister will take place.
The removal of the word "suspicion" in Clause 25(2)(a) places the burden on the word "belief" which one hopes connotes a more positive approach. More importantly, the proposed paragraphs (b) and (d) make requirements on the Secretary of State which not only seem proper and just but will send out welcome signals to those of us who are in regular contact with asylum seekers.
The amendment meets the concerns of those like myself who believe that anti-terrorism legislation is right but are suspicious when it sometimes gives the impression of wanting to strain the existing rights of asylum seekers. In saying that, I echo the earlier intervention of the noble Lord, Lord Phillips. We are talking about suspected terrorists.
Baroness Buscombe: I, too, welcome the amendment. It appears eminently sensible. As the right reverend Prelate says, it sends out all the right signals and in that sense would be reassuring.
Lord Goldsmith: Amendment No. 114C is concerned with the basis upon which SIAC can cancel on appeal a certificate issued under Clause 21 that a person is a suspected international terrorist. Part of it relates back to Amendment No. 114A which we have already discussed. I shall indicate that in a moment.
Perhaps I may indicate what the appeal to SIAC is about. As is clear from Clause 25, it is about the certificate. The issue for SIAC is about the certificate. The word "reasonable" was included in another place in Clause 25(2)(a). The reasonable test was placed on the Secretary of State when issuing a certificate under Clause 21. That is why Clause 25(2)(a) states that on an appeal the commission must cancel the certificate if,
"it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b)".
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Having placed such a test on the Secretary of State, noble Lords may think it entirely right that SIAC should consider the reasonableness of the belief and suspicion required to justify the making of the certificate. It is plain that the existing Bill imposes on SIAC a requirement to consider whether there are reasonable grounds for the belief.
The amendment proposes a somewhat different test. I take it in two stages. First, paragraph (d) of the amendment relates back to the points addressed in Amendment No. 114A by my noble friend the Minister. That deals with the question whether the Secretary of State has taken all reasonable steps to avoid the need for detention. He indicated why the Government take the view that it is not right on the face of the Bill to impose that obligation on the Secretary of State notwithstanding that those steps will be taken. He indicated the difficulty, for example, of giving SIAC the obligation to decide that a criminal prosecution should take place even though the prosecuting authorities consider it inappropriate to do so—for example, because the evidence is not there. To include the proposed paragraph (d) would give rise to all the difficulties to which my noble friend referred.
Paragraphs (a) to (c) might be seen as a re-working of the two provisions contained at present in Clause 25(2)(a) and (b) which state:
"On an appeal the Commission must cancel the certificate if … it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to … or it considers that for some other reason the certificate should not have been issued".
The Government's view is that the wording in Clause 25 is preferable to the wording which is proposed in the amendment, even though, as I have indicated, there is a considerable overlap between the two. I address the following points.
The amendment seeks to substitute the expression,
"insufficient grounds for a belief of the kind referred to",
for the words,
"no reasonable grounds for a belief".
The test which the Secretary of State accepts—and which was imposed—is that his belief in the risk and suspicion of a person being an international terrorist should be reasonable. He should reasonably believe that. I suggest that it is therefore entirely appropriate that SIAC should track the same concept and not introduce another concept which will only give rise to confusion as to what is the right test. Reference has already been made to the House of Lords' judgment in the Rehman case setting out the general approach which SIAC should take when considering what respect to accord to the Secretary of State's decision.
I recognise that the words in paragraph (b) have been drawn from Section 4 of the Special Immigration Appeals Act. That is the section which deals with the determination of appeals by SIAC under the 1997 Act. Of course I understand the proposal to replicate the provision here. However, I have already suggested that the wording that has been chosen by the draftsmen of reasonableness in subsection (2)(a) of Clause 25 tracks the wording in subsection (1) of Clause 21. That is the wording which best fits the structure of the Bill.

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There are some differences between the matters which SIAC will consider under the Bill and those that it would consider under an ordinary appeal. I have emphasised that under these powers SIAC is considering the certificate. Therefore, I suggest it is entirely appropriate that the test that it applies should mirror the test which the Secretary of State has to apply.
I mention one other matter which may be relevant to this discussion and could be relevant to the discussion we shall have on Amendment No. 119. Subsection (2)(b) of Clause 25 provides that SIAC is to cancel the certificate—again I emphasise the word "certificate"—where it considers that for some other reason the certificate should not have been issued. What we had in mind in putting that forward was to ensure that SIAC would have the powers available in a traditional judicial review to cancel the certificate, for example, on procedural irregularity grounds. The provision is not intended to cover the wider issues which are mentioned, for example, in paragraph (d) of the noble Lord's amendment—I have already dealt with that—because those are not matters which would arise on the consideration of the certificate.
I hope that with that explanation of why the words which have been chosen in subsection (2)(a) of Clause 25—the Committee may feel that it is a strong test:
"it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b)"—
adequately and properly reflect the judicial scrutiny of the reasonableness of the Secretary of State under Clause 21, the noble Lord will feel able to withdraw the amendment.
Lord Dholakia: I thank the Minister and am grateful for the explanation he has offered. I shall certainly discuss the matter with the people who suggested the amendment to us and, if necessary, I may discuss the matter further with the Minister. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Corbett of Castle Vale Lord Corbett of Castle Vale moved Amendment No. 114D:
Page 13, line 4, after "appeal" insert ", which shall be heard within seven days,"
The noble Lord said: I remind the Committee that this amendment also concerns an appeal against certification of someone as an international terrorist who faces, as a result of that—the Minister was kind enough to make that clear—indefinite imprisonment. I say in passing that I consider the word "detention" a euphemism; we are going to lock someone up. I understand the reasons for that, but none the less we should be absolutely clear what we are talking about.
On my reading, this part of the Bill sets no time limit for the hearing of such an appeal against certification. I share the concerns of the Bar Council and the Criminal Bar Association that that may run the risk of being a breach of Article 5(3) of the European Convention on Human Rights. In any event, whether
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or not that is the case, given that this is an appeal against indefinite imprisonment by a person who has neither been formally charged nor tried and convicted, I think it is even more important that there is the earliest possible hearing by SIAC of an appeal when it is lodged and that a time limit should be imposed.
I understand the point that the noble Lord, Lord Goodhart, made in connection with his amendment on this matter; that is, that it may appear that we seek to rush things, if I can put it that way. However, it is the person who is imprisoned who is responsible for the timing as regards lodging the appeal. He or she would take all steps with his or her legal advisers properly to prepare that appeal so that there need be no delay at that end. SIAC may have already carried out one of the six-monthly reviews, so it will be familiar with the arguments of the Home Secretary for reaching the decision to sign the certificate. Any argument that the provision would not assist the imprisoned person I do not think can be substantiated.
A further argument in favour of the measure is one the noble and learned Lord the Attorney-General made clear earlier today; that is, that a foreign national who has been charged, tried, convicted, sentenced and has completed that sentence and would normally then be deported but who cannot be deported could then be caught by the provisions of Clause 21. In other words, having been through the courts and served the sentence imposed, because it is the opinion of the Home Secretary that that person still represents a real and present danger, he could then be imprisoned indefinitely beyond the sentence. That is another strong argument for imposing a time limit by which SIAC must hear these appeals. I know that the noble and learned Lord the Attorney-General will take this matter seriously, but I really do not feel that it is safe in these serious circumstances where we have taken people's liberty away from them for reasons we all understand that it should be left simply to SIAC to decide whether it will hear an appeal in a matter of days, weeks or, if it is the summer holidays, months. I beg to move.
Lord Avebury: I was going to ask the noble Lord the following question before he sat down, but perhaps I can address it to the Minister. In the particular case which the noble Lord discussed towards the end of his remarks where a person has been tried, convicted and sentenced, has served his sentence and then at the end of that process the Secretary of State issues a certificate and the detention is prolonged, there is no excuse whatsoever for any delay in a SIAC hearing, because the Secretary of State will already have taken into consideration before the end of the sentence the fact that the person represents a threat to the security of the country and he will have decided to issue a certificate. He may not even necessarily wait until the end of the sentence. After all, in cases where a person reaches the end of a sentence and a deportation notice is issued, the prisoner knows that before he gets to the end of the sentence. However, in the past—I do not know whether this is still the case—the deportation notices were not issued sufficiently far in advance of the

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person reaching the end of his sentence for him to consult his legal advisers and take the necessary action, if he decided to do so, to resist the deportation notice.
I am quite certain that the Secretary of State, knowing that that person is coming to the end of his sentence, will have reviewed the matter and will have decided to issue a certificate. There is no conceivable reason why he should not do so before the end of the sentence, why SIAC should not then take the matter promptly under its consideration and why the hearing should not be held as soon as possible after the end of the sentence. That is a case in which the seven days proposed by my noble friend would certainly be very reasonable for a substantive hearing and not only for the preliminary hearing on directions.
I hope that the noble and learned Lord will assure us that in such cases SIAC will, indeed, do as I suggest and that there will be no delay whatever between the end of a person's sentence and his appeal being heard before the commission.
7.30 p.m.
Lord Goldsmith: I assure my noble friend Lord Corbett that I take these issues seriously. I take very seriously our obligations under the European convention. That is why the Government are opposed to the proposal put forward by the Benches opposite that, instead of taking this course, we should send people back to places where they could be killed or subjected to torture or inhuman or degrading treatment. We also take very seriously the obligation under Article 5 of the convention that there should be a speedy determination.
I believe that I can make that point best by responding to the proposition of the noble Lord, Lord Avebury. He asked whether we could assure the Committee that SIAC would act in a particular way. The whole point of having an independent court is that it is for the independent court to act. I have no doubt that SIAC would want, and in any event is obliged, to act in accordance with the European convention. It is a public authority.
With respect, I believe that it would be wrong to impose an obligation on SIAC to hear an appeal within seven days, apparently even if the applicant was not ready for it. That is the effect of the obligation as it would be amended. That may be totally contrary to the interests of the applicant. The applicant may want time to ensure that he, his representative and the special advocate are able to put forward properly the strongest case against the issuing of a certificate. Therefore, I suggest that, while the reasons for proposing it are entirely understandable, imposing what appears to be a "quick into court" to obtain a determination may in fact have the opposite effect.
Perhaps I may make two other points. I understand why my noble friend does not like the language which is used. However, I remind him of two important facts. First, there is a sunset clause. That means that there is a finite end to the power, quite apart from the fact that the power must return to Parliament after 15 months and then each year for affirmative resolution.
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Constant reviews are provided automatically under the Bill. But, above all, the big difference between this proposal and imprisonment is that, if the person detained wishes to leave and can find somewhere to go which will take him, he is free to go. That is not the case in relation to imprisonment, and it is a very important distinction. It is only because we cannot deport such people that we must turn to this alternative proposal.
Perhaps I may also pick up on another point because it has been referred to several times. Earlier, I responded to a question from the noble Lord, Lord Avebury, about the position of someone who had been a convicted terrorist. I hope that I responded frankly and openly about the theory of what would apply under the Bill. However, as to the practicality of it. I know of no cases where this is presently envisaged. If someone is convicted as an international terrorist, the strong likelihood is that the sentence wit be long. But that will be for the courts to determine.
In practice, a situation may arise in which, after a person has been served, evidence will still be made available. I do not know whether this Bill, when it becomes an Act, will still be in force at that stage. If it is and if there is still evidence persuading not only the Secretary of State, if I may pick up on what my noble friend said, but also SIAC—the case would be subject to a SIAC review—that that person remained a threat to national security and retained links to international terrorism, then in theory that could apply.
I add one further point. It is, of course, possible that the criminal proceedings could have had excluded from them on the grounds that they were too sensitive to be relied upon in criminal proceedings sensitive information which, if it had been adduced, could have led to more serious charges. Therefore, if I understood it correctly, it is not, as it were, the double jeopardy point. It may be quite different information which has not formed part of a sentence imposed by the court. However, I was responding to a theoretical position. I hope that the reason for these powers has been clearly expressed.
However, with regard to the amendment, the requirement for SIAC to hear an appeal within seven days places on it an obligation which may be disadvantageous to the applicant. It is unnecessary because Article 5.4 of the European convention places such an obligation, and the speed of the hearing will be determined in all the circumstances of the case. There are cases where a longer period of time will be entirely appropriate. Previously I mentioned that it would be a matter of days. There may well be cases where a longer period than that would be entirely appropriate. But it should be left to SIAC to determine. We should not impose a time limit upon it. I hope that my noble friend will not press his amendment.
Lord Elton: I want to raise a small point. I wonder whether the noble and learned Lord can confirm that, at the point of expiry of these clauses under the sunset clause, anyone in detention under those provisions would automatically be released. Is that right?
Lord Goldsmith: Yes, I so confirm.
Lord Avebury: Perhaps I may ask the noble and learned Lord whether it is still the case that a person who is convicted of a terrorist offence would necessarily serve a very long sentence. Is it not a fact that, under this Bill, "international terrorist" means a person who is a member of, or belongs to, an international terrorist group? Therefore, if someone has been convicted merely of membership, let us say, of the PKK or the LTTE, then he might receive a short sentence on those grounds. At the end of that sentence, the Secretary of State might take the view that he was a threat to our security and issue a certificate. Therefore, this is not a situation which we can necessarily guarantee will occur only 15 or 20 years down the line, as the noble and learned Lord implied.
I know that no one is being prosecuted at present, in spite of the Terrorism Act 2000, simply for being a member of an organisation. In fact, many people have demonstrated outside the Home Office wearing T-shirts displaying the insignia of the various terrorist organisations proscribed under the 2000 Act without the police taking any notice. There have been crowds in Trafalgar Square where people have acknowledged and boasted of their membership of terrorist organisations without the police turning a hair. But in the future more strict application of the Terrorism Act 2000 may be enforced by the prosecuting authorities. We cannot tell.
Therefore, I believe that the hypothesis on which the noble and learned Lord based his reply—that is, that we do not have to consider this matter until some time in the distant future—may not be strictly true.
Lord Goldsmith: I was trying to respond to the hypothesis as I understood it from the noble Lord. However, I invite recollection of this important point: it is not membership of a terrorist organisation that gives rise to these proposed powers; it is the fact that the person has no right to be in this country, is the subject of proper immigration control requiring that person to be deported but he cannot be deported because of the impediments that we have described—and, critically, that that person is reasonably believed to be a threat to national security. The tough question that must be asked when that person is reasonably believed to be a national security threat, whether he has already served a sentence for shop-lifting or for something else, is: is it right that that person should roam free if we cannot deport him as the law would otherwise require?
Lord Corbett of Castle Vale: I am grateful to my noble and learned friend the Attorney-General for the way in which he dealt with the amendment. He tempted me when he said that imprisonment in the generally understood meaning of the word is not involved because the person concerned can walk away. I shall weary neither him nor the Committee with details on that point, except to say that it is fanciful to think that it will be easy for someone who is branded and imprisoned as an international terrorist to pick up the phone to speak to the Australians, French, Italians
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or Canadians, and say, "Hi. The Brits say that I am an international terrorist. Can I come and live with you?". There will be real problems in that regard.
I tried to anticipate what I thought my noble and learned friend would say about the seven-day time limit. I am sorry that he does not see the need for a time limit, although I understand exactly his point about the responsibilities of public bodies to observe the provisions of the ECHR. That goes some way towards meeting my objection. However, I remind him of what I said about the person who lodges the appeal. It is that person who is in charge of the timetable. No one who lodges an appeal would do so without being fully and properly prepared for a hearing. If he was not so prepared, he would be taking an immense risk on top of an already difficult situation. To that extent, the safeguard is with the person who is in prison. However, I do not want to labour that point.
I hope that when all of these provisions are in place, those who are responsible for operating them will read our exchanges at their leisure and he persuaded that they should make all best speed when the appeals are launched. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey: I beg to move that the House do now resume. In moving that Motion, I suggest that the Committee should not meet again before 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Community Legal Service (Cost Protection) (Amendment No. 2) Regulations 2001
7.42 p.m.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)rose to move, That the draft regulations laid before the House on 30th October be approved [8th Report from the Joint Committee].
The noble Baroness said: My Lords, the regulations are made under Sections 11(3) and 11(4)(d) of the Access to Justice Act 1999. They enable the Lord Chancellor to make regulations that limit the circumstances in which costs may be enforced against a person receiving funded services or which define the liability of the Legal Services Commission to meet the costs of the opponent of a person receiving funded services. Such regulations are subject to parliamentary approval under the affirmative resolution procedure. It might be helpful if I start by explaining to the House why we are amending the regulations.
The change is part of a larger package of reform of the financial conditions for funding in civil cases, which will also come into effect in December. We had recognised that that there was a need to make the

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financial conditions for funding fairer and more consistent, ensuring that they better reflected priority needs and the client's ability to contribute towards the cost of his or her funding. However, we also recognised the need to make sure that the financial conditions are as fair as possible between funded litigants and their unfunded opponents.
To that end, we recognised the difficulties encountered by privately paying opponents of publicly funded litigants in recovering their costs. It is often the case that people still have to pay their own costs, despite winning their case against a funded client. A funded client's liability for costs is limited to the amount, if any, that it is reasonable for him to pay, having regard to all the circumstances of the case, including the means and conduct of both parties. Funded clients, by definition, have very limited resources available to them. Consequently, if costs are awarded against a funded client, they are usually ordered,
"not to be enforced without the leave of court",
and their liability is determined at nil. At any time in the next six years the successful unassisted party can apply to vary the order if new information comes to light on the funded client's circumstances. That order will amend the conditions that must be satisfied in order for an order to be made against the Legal Services Commission for the payment of costs incurred by a party who has not received funded services.
We appreciate the distress suffered by successful unassisted defendants who cannot recover costs from their publicly funded opponent. Defendants have no choice about becoming involved in legal actions, so it is right that they should be given some help with meeting costs that they have had no choice but to incur.
If costs cannot be recovered from a funded client, it is possible for privately paying defendants to recover their costs from the Legal Services Commission. At present, in order to do so, the funded client must have begun the proceedings and the winner—the privately paying defendant—must show that he or she would suffer severe financial hardship if the commission does not meet the cost.
The awarding of costs and the decision about whether severe financial hardship would be suffered is for the courts and not for the commission. By introducing the amended regulations, we will give the courts the power to order the commission to pay the costs of a successful unassisted defendant, who would otherwise suffer financial hardship. That involves relaxing the current test of severe financial hardship. We believe that that will strike the right balance between the interests of private litigants and those funded clients who are by definition among the poorest in society.
The changes mean that there will be significant assistance for those people on the lowest incomes. When resources allow, we propose to increase eligibility limits for those services further, bringing them to the same level as those for legal representation,
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which will mean that a further 2 million people will become eligible. I commend the draft regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 30th October be approved [8th Report from the Joint Committee].—(Baroness Scotland of Asthal.)
Lord Goodhart: My Lords, my practice at the Bar has been almost entirely in the civil field, and I am well aware of the problems caused to private litigants when the party on the other side—whether the claimant or defendant—is legally aided. That meant that there has not been a level playing field and that people who win still end up having to pay their costs. There is no doubt that there has to some extent been a form of institutionalised abuse of the system by those who are acting for legally aided clients and who are aware of the strengths that their position gives them. I therefore in principle welcome changes that make it easier to recover costs from the commission.
Of the three proposed alterations I welcome without hesitation the proposal in regulation 4(1) which will remove the strict time limit within which the request for the payment of costs from the commission has to be made. I am also entirely supportive of the proposal that the standard required under regulation 5(3)(c) should be downgraded from "severe financial hardship" to "financial hardship". I accept that such an order should not be made unless hardship can be shown.
The one point about which I am not happy is the restriction to non-funded parties who are individuals. It is obviously right that no order should be made relating to the payment of costs to a large corporation. However, there are many small businesses that are incorporated and, if proceedings were brought against them by a legally aided party, that might cause very severe hardship or the business might go into bankruptcy. I am sorry that there has been a total removal of the right of corporate bodies, however small, to recover costs from the client.
Lord Kingsland: My Lords, I entirely share the views expressed by the noble Lord, Lord Goodhart, on these initiatives.
Baroness Scotland of Asthal: My Lords, I thank both noble Lords for the assent that they have given to these regulations. I say to the noble Lord, Lord Goodhart, that it was necessary for us to strike a balance. We believe that we have achieved the correct balance, but we take seriously all the comments that he has made.
On Question, Motion agreed to.

Damages (Personal Injury) Order 2001
7.50 p.m.
Lord Kingsland Lord Kingsland rose to move to resolve, That this House calls on Her Majesty's Government to revoke the Damages (Personal Injury) Order 2001 (S.I. 2001/2301), laid before the House on 27th June 2001.

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The noble Lord said: My Lords, when assessing damages in court cases involving personal injury or fatal accident, a long-established principle is that full compensation be paid to the claimant. The courts order payment of such compensation in the form of a lump sum. The sum represents an amount that, when invested, will generate a future flow of annual income sufficient to meet the expected costs of care and medical attention throughout the remaining years of the victim's life. Clearly, to cover any future flow of anticipated expenditure, the lower the expected rate of return from investing the lump sum, the higher the lump-sum award will have to be.
In the case of Wells v Wells, the Judicial Committee of your Lordships' House decided that the so-called Ogden tables, prepared by the Government Actuary, should be used to determine the capital sum that best represents continuing loss of earnings, cost of medical expenses and cost of care in personal injury awards. The tables are especially useful in relation to children who are brain damaged or individuals who are paralysed for life.
In effect, the tables are multiplication tables. The judge determines the annual cost or loss and uses the tables to establish the lump-sum compensation. When using the tables, it is necessary to identify the rate of return on certain specified investments. In order to avoid problems that arise from day-to-day changes in the rate of return, Section 1(1) of the Damages Act 1996 gives the noble and learned Lord the Lord Chancellor power to set it. Section 1(4) of that Act enables such an order to be annulled by either House of Parliament.
This Motion to withdraw is substituted for the customary Prayer because, owing to the need to recall Parliament in September and October this year, the 40-day limitation period had elapsed, through no fault of the Government or the Opposition, before your Lordships reassembled on 15th October.
Despite the urgings of the Judicial Committee of your Lordships' House in the case of Wells v Wells, it was not until June 2001 that the noble and learned Lord, relying on calculations made by the Treasury's debt management office, finally set a rate of 2.5 per cent. However, the calculations were manifestly inaccurate. The noble and learned Lord tried again. New calculations were produced; but in the end he reaffirmed his earlier decision.
In giving the reasons for his decision the noble and learned Lord contended that he applied the appropriate legal principle laid down in Wells v Wells. In particular, he stated that it was,
"unrealistic to require severely injured claimants to take even moderate risks when they invest their damages awards".
However, it is plain that the substance of the decision of the noble and learned Lord does not reflect that approach. Our view is that a proper application of the principle in Wells v Wells would produce a rate of return of 2 per cent. The difference between 2.5 per cent and 2 per cent is crucial because of the implication for the scale of the lump sum payments.
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In Wells v Wells the noble and learned Lord, Lord Lloyd of Berwick, said:
"What the prudent plaintiff needs is an investment which will bring him the income he requires without the risks inherent in the equity market, which brings us back to the index linked government stocks".
The problem that the noble and learned Lord, Lord Lloyd, rightly identified is that for most personal injury claimants the costs to be met in the future are care costs that arise on a regular daily, weekly or monthly basis and which are unavoidable. Yet, because of the volatility of equity prices, a claimant who invests his or her award in equities would he exposed to the risk of having to realise capital to meet needs at times when the market value of his or her investments are depressed, thus exhausting the award sooner than anticipated.
The noble and learned Lord, Lord Lloyd, was firmly of the view that the only appropriate investment upon which to base the rate of return would be index-linked government stocks of over five years duration. However, it is clear that in setting the rate the noble and learned Lord the Lord Chancellor was influenced by the opportunities for equity investment. He said:
"there are sensible, low-risk investment strategies available to claimants which would enable them comfortably to achieve a real rate of return at 2.5 per cent or above without them being unduly exposed to risk in the equity markets".
Apart from the fact that that observation contradicts the earlier statement of the noble and learned Lord that he applied the appropriate principles in Wells v Wells, recent activities in the equity markets have severely undermined the strength of the case of the noble and learned Lord. Since United Kingdom equities peaked at about the end of 1999, the FTSE all share index has fallen by over 20 per cent. Indeed, the approach of the noble and learned Lord mirrors that taken by the Court of Appeal in Wells v Wells which was rejected in terms by the Judicial Committee of your Lordships' House.
However, inconsistency with the Judicial Committee's judgment does not end there. The Judicial Committee also made it clear that the selected gross interest rate should be reduced to allow for the effect of tax on the investment proceeds in the form of income and capital gains tax. In a letter to David Kemp, QC, dated 21st September 2001, the Lord Chancellor's Department said that the base figure used by that department of 2.4 per cent,
"does not take tax into account".
The letter goes on to say:
"a figure of 15 per cent has been used as indicated by Lord Lloyd in Wells v Wells",
as an appropriate rate for tax deduction. Deducting 15 per cent gives a figure of 2.09 per cent. So on the figures of the noble and learned Lord the Lord Chancellor, it is clear that 2 per cent is a more appropriate rate. For a 25 year-old woman with a proven loss of £40,000 per annum, such a difference in interest rates results in a loss of £150.000 in a lump-sum award.

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There are other less obvious but, nevertheless, important inconsistencies in the way in which the gross amount has been reached. The noble and learned Lord the Lord Chancellor decided to base his conclusions on an average over all index-linked government stocks, saying, without giving a reason, that he was not obliged to accept that part of the Judicial Committee's decision. Yet the inclusion of government stock with redemption rates under five years increases the gross rate to the detriment of long-term victims for whom the tables are primarily designed.
Perhaps the most undermining evidence of all is that provided by the Government Actuary. Section 1(4) of the Damages Act requires the noble and learned Lord to consult the Government Actuary as well as the Treasury. The Government Actuary is the Government's principal adviser on pensions, which are what most of the awards in these cases are intended, after all, to provide.
With the greatest possible respect, the Government Actuary is far better qualified to advise on these matters than the debt management officer of the Treasury, which may, on occasions and subconsciously, be susceptible to the financial concerns of government departments, such as the Department of Health or the Ministry of Defence.
The Government Actuary was a member of Sir Michael Ogden's working party which met to respond to the noble and learned Lord's consultation and which recommended a rate of 2 per cent in May 2000. Moreover, in his report to the noble and learned Lord the Lord Chancellor, pursuant to Section 1(4) of the Damages Act 1998, the Government Actuary stated:
"My recommendation is that the rate of discount should be prescribed as the rate shown, at the date of the trial, as the gross redemption yield on the FTSE Actuaries Government Securities UK index for index linked gilts with over 5 years to redemption".
He added:
"This rate should be adjusted to allow for tax".
Moved to resolve, That this House calls on Her Majesty's Government to revoke the Damages (Personal Injury) Order 2001 (S.I. 2001/2301), laid before the House on 27th June 2001.—(Lord Kingsland.)
8 p.m.
Lord Thomas of Gresford: My Lords, I support the Motion in the name of the noble Lord, Lord Kingsland. Perhaps I can add a little flesh to the bones from practical experience. Those of us who practised in the personal injury field will know that the purpose of civil damages is to put the plaintiff in the same situation as if he had never been injured. The purpose is to award a lump sum which, together with interest over a period of time, will meet all the expenses which can reasonably be foreseen. In my earlier years there was a protection to the plaintiff for these capital sums by investing in a mixed bag of equity and government stock. To a degree, that was a protection against inflation. However, it was a slightly risky investment.
In 1981 the index-linked government stock was produced. That was a way in which a person could be fully protected against inflation because the stock was
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linked to the retail prices index. As the noble Lord, Lord Kingsland, pointed out, in 1998 Wells set a 3 per cent figure pending the Lord Chancellor's determination under the Act. The Judicial Committee of the House of Lords said the sooner he performed that duty the better; we would know where we were. At the time a figure of 3 per cent was set. That was not a unanimous decision of their Lordships. The yield on index-linked government stocks averaged over a three-year period was 2.85 per cent. It was slightly above the three-year average, even at that time, but the 3 per cent figure was then maintained.
I well recall sitting as a deputy judge in the High Court some two years ago faced with claims for personal injury, each attracting lump sum damages of over £1 million, and being faced with this problem. There were strong submissions that the 3 per cent rate should be lowered because, as the noble Lord said, the Government Actuary, upon whose figures the Lord Chancellor was supposed to act, in his working party had advised a rate of 2 per cent. That was the submission made to me as a deputy judge. Naturally, after reserving judgment and making inquiries of the Lord Chancellor's Department as to when the rate would be set, I followed precedent. We thought—it was certainly strongly put to me—that the rate would be coming down from 3 per cent. Nevertheless, I followed precedent. I regret to say that the plaintiffs in those three cases, who were severely injured, lost out in the sort of figures to which the noble Lord, Lord Kingsland, referred in his illustration. I have practical experience of seeing how injured people have not had the money to which the system says they are entitled.
There was a long wait. It was not until June of this year that the Lord Chancellor finally made his pronouncement. It is something like two to three years since the decision in Wells. I should like to know why. We see so many statutory instruments going through this House and through another place. This is perhaps one of the shortest I have ever seen in my life. All it states, effectively, is that the rate should be 2.5 per cent. Why on earth did it take three years for that to happen? Why is not the rate more flexible? Why can it not be altered in accordance with changing rates? As the noble Lord, Lord Kingsland stated, over three years to June, taking into account 2.5 per cent inflation, the average yield at the current rate over a three-year period was 2.1 per cent. If tax is taken into account, it was less than 2 per cent. Yet, at that very moment, the Lord Chancellor announced a 2.5 per cent rate.
For another three, four, five or six years, however long it may take, that is the figure that will be used. If interest rates fall further and if stock levels fall, so the injured plaintiff will suffer. That is insupportable. I want to see the Lord Chancellor produce a flexible rate that changes as the FTSE index changes. The figures are available on a monthly basis. There is no reason why that should not be done, certainly at more regular intervals than three years, so that plaintiffs can be properly compensated for their serious injuries. We have been talking in terms of indices and financial

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jargon of one sort or another. However, this is a human problem. It is the injured person who is suffering.
Lord Hunt of Wirral: My Lords, as has already been pointed out in the debate on 25th June 2001, when the noble and learned Lord the Lord Chancellor set the discount rate at 2.5 per cent, he ended three years of uncertainty. However, I believe that the last thing that is needed by anybody, including claimants, is for the whole debate to be re-opened.
Noble Lords will know that I am senior partner at Beachcroft Wansbroughs. For many years I have specialised in financial services, especially personal injury damages. I declare that interest. Although I well understand my noble friend's argument put forward in the debate, I believe we have to reflect on the fact that in practice, claimants do not invest in index-linked government securities. Speaking as chairman of the Association of Independent Financial Advisers, I should be surprised if any independent financial adviser would recommend investment solely or even primarily in index-linked government securities.
At the time of our Appellate Committee's decision in Wells v Wells, there were 12 index-linked government securities available. That ruling was based on the assumption that the Government would continue to issue ILGS.
The fact is that no new ILGS have been issued, although there have been further tranches for existing redemption dates. There are now 11 index-linked government securities in issue, four of which have redemption dates within the next five years. There are no ILGS with a redemption date beyond 2030. Therefore, it is not possible for a claimant with a life expectancy of more than 29 years to protect himself or herself beyond that period. In five years' time there will be only seven ILGS unless new ones are issued, and we are informed that none is contemplated.
There is, however, a great demand for ILGS, particularly from pension funds. The Government's failure to issue new index-linked government securities has distorted the market in those stocks. Thus, any argument which now seeks to rely on the return from ILGS is, I believe, completely out of date. Therefore, the Lord Chancellor was right to depart from the view of the Appellate Committee that the best way to protect the interests of injured claimants was to tie the discount rate exclusively to the return from ILGS.
I believe that the Lord Chancellor was entitled to that considered opinion as the Damages Act places the responsibility for setting the rate on him, the only limitation on his power being the obligation to consult the Government Actuary and the Treasury. My noble friend quite correctly quoted the Lord Chancellor when he said that ILGS were not the only indicator of the real rate of return on low risk investment.
If this debate had taken place before the order had been made I would have argued very strongly that the discount rate should remain at 3 per cent. I tabled a Question for Written Answer about the impact of the
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reduction from 3 per cent to 2.5 per cent. The noble and learned Lord the Lord Chancellor responded that a full assessment of the impact of the new discount rate was being prepared and would be published in due course. I do not know whether the noble Baroness will be able to give the House an update on when that assessment will be ready. I shall be very interested to hear what the impact is.
One must recognise that any reduction, particularly against the artificial market which exists at the moment in ILGS, imposes a huge additional burden, for example on the National Health Service. The report of the National Health Service Litigation Authority states that the additional burden caused by the reduction from 3 per cent to 2.5 per cent amounted to £500 million. The decision to set the rate at 3 per cent was that of the Appellate Committee in Wells v Wells. In arguing that it is no longer appropriate to fix the rate to ILGS, I recognise that in today's market an investor should easily be able to achieve a return of 3 per cent without running any undue risk. If one accepts that to fix the rate by reference to the return from ILGS is no longer fair to both sides, 3 per cent is likely to be too low. Having said that, I recognise that this order was made after full consultation and consideration of the interests of claimants and defendants alike and, I believe, strikes a fair balance between them. I have no wish to see a return to the atmosphere of uncertainty which existed before the order was made.
In conclusion, having discussed this matter with my noble friend, I recognise the strong view that he expresses from the Front Bench. I hope that in the longer term those responsible for this policy will give greater consideration to providing the court with power to order structured settlements. That entirely equitable and humane alternative would avoid all those distasteful arguments about life expectancy and give the injured persons, particularly the parents of an injured child, the security that they need.
8.15 P.m.
Baroness Crawley: My Lords, listening carefully to the noble Lord, Lord Kingsland, I cannot agree with the argument that he put forward in his bid to revoke the Damages (Personal Injury) Order 2001. I try not to disagree with the noble Lord as a former colleague in the European Parliament. However, tonight I must do so. The crux of the noble Lord's problem with the order is that the discount rate for the lump sum damages in personal injury cases has been set too high and should be rounded down to 2 per cent. Yet, as the noble Lord is aware, the Lord Chancellor did not pluck the rate of 2.5 per cent out of thin air. He did not pass me in the corridor one day and ask me what I thought the discount rate should be. The Lord Chancellor did all, and more, that he was required to do by the 1996 Act in terms of consultation. He also commissioned the highest quality advice from independent financial experts.
Having considered all the relevant evidence, the Lord Chancellor came to the conclusion that it was right and appropriate to set the discount rate at 2.5 per

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cent. In so doing he made it known that his intention was to set a rate that, as far as possible, ensured that injured parties in personal injury cases received the full compensation awarded by the court, no more and no less.
As the noble Lord, Lord Kingsland, is aware and the noble Lord, Lord Hunt of Wirral, has just observed, inadequate compensation is unfair to claimants and over-compensation is unfair to defendants. I believe that in this case the Lord Chancellor has struck the right balance in the rate that he set. I also believe that the noble and learned Lord has struck a balance in recognising that the most significant risk that claimants face is not that their investments will fail to yield a 2.5 per cent return per annum but that they will live longer than assumed when the compensation was awarded. To raise the value of lump sums with an artificially low discount rate will hinder the development of structured awards which can reduce the risk of claimants who live longer facing poverty in old age.
The noble Lord, Lord Kingsland, may accept that it would seriously impede the timely settlement and disposal of personal injury cases if frequent changes were made to the rate to take account of limited and, most probably, temporary changes in market conditions. For these reasons, among others, I cannot agree with the challenge to the order.
Lord Brennan: My Lords, in my professional life it has been my duty to represent a considerable number of injured plaintiffs and many defendant organisations which meet such claims. Experience has taught me one vital fact about those who are severely injured, which is what this debate is about: that they, and particularly their families if they are children, want the assurance, in so far as they can obtain it, that the money they need to look after themselves or their loved ones will not run out.
Contrary to some superficial reports that large awards are squandered, reputable research indicates that many such families save money against a rainy day which they should be spending on the care for which the money was awarded in the first place. They save because they are afraid that the money will run out. In one's professional career one has faced many campaigns to change the rate of interest, which is at the heart of calculating the future loss. The objective is to avoid the risk of the money running out.
The time has come I fear to give up the campaign for the moment. Only three or four years ago the rate was 4.5 per cent. That was wholly unjust. Because of the decision in Wells v Wells it became 3 per cent. That was acceptable at the time. It has now been set at 2.5 per cent. That is the reality. The Motion will not change it.
In giving his reasons, my noble and learned friend the Lord Chancellor tried to reflect a number of considerations. Whether practitioners, trade unionists or whoever agree or disagree, that is the reality. I think that it is time to put the argument aside, with three very important provisos. The first one is that although the Lord Chancellor rightly said that it would not be right
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to tinker frequently with this rate, equally it would he wrong to be indifferent to a market where rates of interest have gone to the present level and could sink yet more. To bear that in mind and to review the rate earlier than three years if the circumstances required would surely be a prudent approach.
The second proviso is, I hope, important to practitioners. In the Damages Act 1996, Section 1(2) follows Section 1(1) which gives the Lord Chancellor the right to prescribe the rate. But subsection (2) is very important because it allows a judge to award a different rate. If the Lord Chancellor can find it in his heart to forgive me, I have to correct his reasons in one material particular. At the end he said that under that subsection a judge may adopt a different rate in a particular case if there are "exceptional circumstances" so to require. The phrase "exceptional circumstances" is not a statutory phrase. The subsection says that a judge can award a different rate, if in the circumstances of the particular case, it is "appropriate"; in other words, if justice requires it, riot if there are exceptional circumstances. Practitioners should remember that.
My last proviso is not really a proviso; it is a strong and urgent request to the Government to put this history of uncertainty about claims and damages right out of the legal arena in personal injuries claims. That can be done under the law by judges awarding the annual cost of the loss—whether it be care, transport or whatever—which will run for the lifetime of the injured person. So when they go to court the decision is: how much do you need from time to time for that requirement? The heartache, the legal costs and the waste of time spent in trying to calculate a lifetime sum could be completely avoided. Justice would he done. Worry would be put aside. Everyone interested in this, from the claimants to the insurers and the lawyers, would find it much more satisfactory.
I hope that the Lord Chancellor's present consultation on this issue will lead to a conclusion as robust as the one that I have suggested. The debate marks a review of yesterday. I close by inviting a different approach tomorrow.
Baroness Hooper: My Lords, I support my noble friend's Motion. In so doing, I support the argument put forward by the noble Lord, Lord Brennan, to end the uncertainty in this matter.
I intervene in the debate as a former independent board member of the Medical Defence Union. I shall not repeat the detailed arguments which have already been made. I recognise the needs of claimants in these sometimes very tragic circumstances. But I make the point that lowering the discount rate from June of this year immediately increased compensation payments for medical and negligence claims. It dramatically increased the National Health Service's clinical and negligence liability. That was a point made by my noble friend Lord Hunt. It increased the payments made by medical defence organisations on behalf of their members. These payments have increased exorbitantly in recent years. Therefore, it follows that

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any further decreases in the discount rate will not be in the public's long-term interest as increases in awards will ultimately be made from the public purse.
I also ask the Minister why discount rates cannot be based on a prudent combination of index-linked government stocks and equities and not just on index-linked government stocks. That blend would be extremely helpful.
The final point that I make is in relation to the retrospective effect of these changes. Medical negligence claims have such long time-scales that any increases in awards have an immediate adverse effect on NHS funds.
Baroness Scotland of Asthal: My Lords, I first thank all those who have contributed to the debate. I am very grateful to noble Lords who have raised a number of issues. Noble Lords will know that my noble and learned friend the Lord Chancellor gave a long and detailed consideration to this order. In so doing, he acted entirely properly throughout and reached an entirely reasonable decision.
I have listened with great care to what the noble Lord, Lord Kingsland, has said, but perhaps I may gently suggest that some of the quotations were a little selective. One really must read the decision and the reasons given to it in the round. In preparing for the debate, I refreshed my memory by reading those reasons in full. Indeed, I was tempted, so comprehensive and complete were they, simply to read them into this debate as my speech. But I know that that would never do.
Last year the Lord Chancellor issued a consultation paper seeking views on his powers in setting the discount rate. Respondents were overwhelmingly in favour of the Lord Chancellor prescribing a discount rate, but it is right to say that there was a wide range of contrasting opinions about what the rate should be. The noble Lord, Lord Thomas, asked why it took so long. Part of the reason is because the Lord Chancellor was determined to get this matter right and to make as broad a consultation as was necessary. The Lord Chancellor gave careful consideration to the many difficult and detailed points raised and commissioned further advice from expert financial analysts.
I was refreshed to hear the comments made by the noble Lord, Lord Hunt of Wirral. I agree with him in terms of what the reality of the situation demands.
In the course of the process, the Lord Chancellor, as he is required by statute, consulted the Government Actuary and the Treasury. He also approached the Debt Management Office, which is the Treasury executive agency responsible for managing the Government's debt. As such, it records daily market prices on all government stocks available in the market and is an authoritative source on the real yields implied by those prices. His decision takes account of their advice about the details of different methodologies. I stress the word "consultation". The Lord Chancellor, although he is obliged to consult and to take that into consideration, is not restricted to simply
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applying what those consultees say. He must engage in an analytical process of defining what the consequences of those diverse consultations actually mean.
On 27th June, the Lord Chancellor laid the order setting the discount rate at 2.5 per cent. His reasons were placed in the Libraries of both Houses. Those reasons referred to a three-year average gross yield of index-linked government stock of 2.61 per cent, on which the decision was largely based. Questions were raised as to the correctness of the figure, and the Debt Management Office, which supplied that figure, subsequently discovered that there were certain minor inaccuracies in the underlying data.
It was regrettable that that error arose. As a result, the Lord Chancellor considered his decision completely afresh. He applied the legal principles laid down authoritatively by the courts, most recently by an Appellate Committee of your Lordships' House in Wells v Wells, as has already been said.
It was held that,
"the object of the award of damages for future expenditure is to place the injured party as nearly as possible in the same financial position he or she would have been in but for the accident. The aim is to award such a sum of money as will amount to no more, and at the same time no less, than the net loss".
That point has been emphasised by several noble Lords, not least by my noble friend Lady Crawley. The Lord Chancellor also acknowledged that claimants who had suffered severe injuries in an accident will not be in the same position as ordinary investors and will need to ensure that they have dependable sources of income to meet their future needs and care costs. For those reasons, it is unrealistic to expect them to take even moderate risks when investing their damage awards.
The Lord Chancellor thought it important that both claimant and defendant should have a reasonably clear idea about the impact of the discount rate on their case. He decided that this objective would be achieved by setting a single rate to cover all cases; that it should be set to the nearest 0.5 per cent; and that there should not be frequent changes to the rate. Noble Lords will know that the noble and learned Lord, Lord Lloyd of Berwick, made just that point in Wells v Wells, when he said that it was undesirable that the guidelines should be changed too often.
The discount rate has to cover a wide variety of different cases and claimants with widely differing personal and financial characteristics. The consultation exercise also demonstrated that estimating the real rate of return on possible future investments, including index-linked government stock, involves making some assumptions for the future about the wide variety of factors that affect the economy as a whole—for example, the likely rate of inflation. So any approach to setting the discount rate must be fairly broad brush. There can be no single right answer as to what rate should be set.
Their Lordships in Wells v Wells decided that it was appropriate to set the discount rate by reference to the average yield on index-linked government stock. In deciding what the rate should be, the Lord Chancellor

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considered advice on various forms of investment in addition to index-linked government stock, including banks, building societies, bonds and equities. I must tell the noble Baroness, Lady Hooper, that that was very much in his mind.
He considered that claimants with a large award as compensation could reasonably be expected to seek expert financial advice. I was not surprised to hear the noble Lord, Lord Hunt of Wirral, say that that was in accordance with good practice. The advice that my noble and learned friend received demonstrated that a mixed portfolio, which would be recommended as offering a low-risk form of investment, could be expected to produce real rates of return well in excess of 2.5 per cent. Nevertheless, the Lord Chancellor followed their Lordships in Wells v Wells and decided that he should use the average yield on index-linked government stock as the benchmark for setting the rate.
There is no single correct method by which the average yield on index-linked government stock can be calculated. Among other factors, the calculation will depend on which stocks are to be included in the average, the length of the period under consideration, the inflation assumption made and the form of average taken. There is room for reasonable people to reach different conclusions as to the preferable approach to each of those points of detail. Indeed, there were some differences of this nature between the judgments of their Lordships in Wells v Wells itself.
The Lord Chancellor chose a methodology for calculating the average yield on index-linked government stock that is robust and straightforward. It is a simple average of the real yields over the past three years of all stocks available in the market. His calculation is based on an assumed inflation rate of 3 per cent, which is now the standard industry assumption.
That calculation produces an average gross yield figure of 2.46 per cent and a yield net of tax of 2.09 per cent. Accordingly, my noble and learned friend concluded that the net average yield on index-linked government stock, as adjusted to take account of tax, lies in the range between 2 per cent and 2.5 per cent. In his opinion, following Wells v Wells, the discount rate should be set with that range in mind. The Lord Chancellor did not consider that the choice of whether a rate of 2 per cent or one of 2.5 per cent was appropriate was a simple arithmetical matter, nor that Wells v Wells required him to prefer one rate or the other.
It was in the context of that final stage of the reasoning process—whether to round up or down—that the Lord Chancellor again considered the advice received through consultation. That included advice that the present rate of return in respect of index-linked government stock does not represent a pure and undistorted measure of the real rate of return that markets would afford. It also appeared that there are sensible low-risk investment strategies available to claimants that will enable them comfortably to achieve a real rate of return of 2.5 per cent or above, without
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their being unduly exposed to risk in the equity market—a point reinforced this evening by the noble Lord, Lord Hunt of Wirral.
Having considered all the evidence and advice available to him, my noble and learned friend concluded that the discount rate should be 2.5 per cent. In doing so, he had borne in mind that it will, of course, remain open to the courts, under Section 1(2) of the Damages Act 1996—I am happy to confirm to my noble friend Lord Brennan that his correction was right—to adopt a different rate in any particular case if there are exceptional circumstances to justify them in so doing.
So there is a degree of flexibility. The Lord Chancellor's decision to set the rate at 2.5 per cent, which achieves the objective of providing full compensation—no more; no less—strikes a fair balance between the interests of claimants and defendants. There is a major point here. The Lord Chancellor has set the discount rate in exercise of his statutory powers to do so, has directed himself correctly in accordance with the law and acted throughout on the highest quality legal and financial advice.
Your Lordships may think it significant that having set the discount rate at that level, he has been criticised both by those who want a lower discount rate and by those who want a higher rate. That in itself is unsurprising. But—perhaps this is the point—no one has initiated legal proceedings to challenge his decision in the courts. Any such challenge would now be time-barred. The courts are the correct place to challenge the ministerial exercise of discretionary powers conferred by Parliament. One almost feels that if no one is entirely happy, my noble and learned friend has probably got it exactly right. I invite your Lordships to so infer.
I turn to some of the specific points that have been raised. The noble Lord, Lord Kingsland, said that the Lord Chancellor's decision mirrored that of the Court of Appeal in Wells v Wells, which was overturned by their Lordships on appeal. Your Lordships will know that that is not correct. The Court of Appeal in Wells v Wells favoured a figure of 4.5 per cent based directly on a mixed portfolio. The noble and learned Lord the Lord Chancellor used the benchmark on government stock and adjusted that figure only at the margins to take account of the mixed portfolio and other factors which I have already outlined.
In reply to the noble Lord, Lord Thomas, who asked about setting the rate and suggested that the delay was unreasonable, it can be seen from what I have described that it took a great deal of time and care to reach that conclusion. I invite the noble Lord to accept that it was undertaken as speedily and efficaciously as was necessary and appropriate.
The noble Lord also asked about a flexible rate. What people most need in this area is certainty. A number of noble Lords commented on the distress, concern and disadvantage which was caused by instability and lack of certainty. We do not believe it would inure to anyone's benefit to return to that position.

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The noble Lord, Lord Hunt, asked about a lump sum. Calculating a lump sum is not an exact science and claimants will invariably end up with too much or too little. That is why the noble and learned Lord the Lord Chancellor is currently taking forward work on structured orders and expects to publish a consultation paper on detailed proposals in the new year. My noble friend Lord Brennan mentioned some of that work.
There is an issue in relation to lump sum awards. Some have argued that it will encourage families to save money instead of spending it on care; that families will be concerned that they will be squandering it. Others say that they will be depriving themselves of the care needed. The consultation paper must encompass all such issues in order for us to gain a better understanding before reaching an informed decision.
The noble Lord, Lord Hunt, also asked when information will be published. The published information will be available early in the new year. We need to gather data from all the major interest groups affected, including the local authorities. The latter has been taking a little time and we must await the outcome of that exercise. However, the matter is being examined with a deal of energy.
I hope that I have covered the issues which were raised by noble Lords. In responding to the Motion, I should make clear that I am not, on behalf of my noble and learned friend the Lord Chancellor, making a fresh decision but seeking better to explain and amplify why he reached the decision he reached in July. That is the only decision that he has made in relation to the matter.
I invite your Lordships to say that we have had a good debate but that time has moved on. Many cases have been settled as a result of the 2.5 per cent recommendation and they have finally been disposed of on the basis of that rate by the Lord Chancellor. I invite your Lordships to say that it would not be appropriate for us now to seek to re-open a situation which has properly and fairly been closed.
Lord Kingsland: My Lords, I thank the Minister and all noble and noble and learned Lords who have spoken in the debate. Perhaps the noble Baroness will allow me one or two reflections on what she said. First, I do not believe—and in doing so perhaps I am alone in your Lordships' House—that the fact that my proposal will increase the expenditure of the National Health Service is relevant in this decision. If people are under-compensated and suffer as a result, that is a far more serious matter than the Government having to raise a little more money in taxation. I am delighted to see the noble Baroness confirming that that was not a consideration in the mind of the noble and learned Lord the Lord Chancellor when he made his decision.
While the noble Baroness was making her speech, I tried to test what she said against the judgment of the noble and learned Lord, Lord Lloyd, in Wells v Wells. With the greatest possible respect to the noble Baroness, I must say that I found her conclusions about what the noble and learned Lord the Lord
538
Chancellor determined not to match the criteria laid down by the noble and learned Lord, Lord Lloyd. It is clear from what the noble Baroness said that a return on equity shares was taken into account in the decision of the noble and learned Lord the Lord Chancellor. It is also clear that, when the calculation for tax was made, the figure which resulted was much closer to 2.0 than 2.5 per cent.
In those circumstances, I believe that the noble and learned Lord the Lord Chancellor ought to have drawn the logical arithmetical conclusions and not insert some additional factor which had no place in the judgment of the noble and learned Lord, Lord Lloyd. In those circumstances, I should like to test the opinion of the House.
8.45 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 106.

Division No. 2

CONTENTS

Attlee, E.

Jenkin of Roding, L.

Barker, B.

Kingsland, L. [Teller]

Blatch, B.

Laird, L.

Brougham and Vaux, L.

Luke, L.

Buscombe, B.

Lyell, L.

Byford, B.

McNally, L.

Carlile of Berriew, L.

Marlesford, L.

Colwyn, L.

Montrose, D.

Cope of Berkeley, L.

Nicholson of Winterbourne, B.

Craigavon, V.

Northesk, E

Dholakia, L.

Onslow, E.

Dixon-Smith, L.

Park of Monmouth, B.

Elton, L.

Phillips of Sudbury, L.

Elton, L.

Roper, L.

Geddes, L.

Rotherwick, L.

Glentoran, L.

Russell, E.

Goodhart, L.

Scott of Needham Market, B.

Greaves, L.

Seccombe, B.

Greenway, L.

Taylor of Warwick, L.

Hanningfield, L.

Thomas of Gresford, L. [Teller]

Hodgson of Astley Abbotts, L.

Thomas of Walliswood, B.

Hooper, B.

Tope, L.

NOT-CONTENTS

Acton, L.

Carter, L. [Teller]

Alli, L.

Chandos, V.

Amos, B.

Christopher, L.

Andrews, B.

Clark of Windermere, L.

Archer of Sandwell, L.

Clinton-Davis, L.

Ashton of Upholland, B.

Cohen of Pimlico, B.

Bach, L.

Corbett of Castle Vale, L.

Bassam of Brighton, L.

Crawley, B.

Berkeley, L.

Currie of Marylebone, L.

Bernstein of Craigweil, L.

Davies of Oldham, L.

Billingham, B.

Desai, L.

Blackstone, B.

Dormand of Easington, L.

Borrie, L.

Dubs, L.

Bragg, L.

Elder, L.

Brennan, L.

Evans of Temple Guiting, L.

Brett, L.

Falconer of Thoroton, L.

Brooke of Alverthorpe, L.

Farrington of Ribbleton, B.

Brookman, L.

Faulkner of Worcester, L.

Brooks of Tremorfa, L.

Filkin, L.

Campbell-Savours, L.

Gale, B.

539

Gibson of Market Rasen, B.

Massey of Darwen, B.

Gladwin of Clee, L.

Merlyn-Rees, L.

Golding, B.

Milner of Leeds, L.

Goldsmith, L.

Mitchell, L.

Gordon of Strathblane, L.

Morgan, L.

Goudie, B.

Morris of Aberavon, L.

Gould of Potternewton, B.

Peston, L.

Grabiner, L.

Pitkeathley, B.

Grenfell, L.

Plant of Highfield, L.

Grocott, L.

Portsmouth, Bp.

Harris of Haringey, L.

Ramsay of Cartvale, B.

Harrison, L.

Rendell of Babergh, B.

Haskel, L.

Richard, L.

Hayman, B.

Rogers of Riverside, L.

Hilton of Eggardon, B.

Rooker, L.

Hollis of Heigham, B.

Sainsbury of Turville, L.

Howells of St. Davids, B.

Sawyer, L.

Howie of Troon, L.

Scotland of Asthal, B.

Hoyle, L.

Sewel, L.

Hughes of Woodside, L.

Simon, V.

Hunt of Chesterton, L.

Stone of Blackheath, L.

Hunt of Chesterton, L.

Symons of Vernham Dean, B.

Hunt of Kings Heath, L.

Temple-Morris, L.

Irvine of Lairg, L. (Lord Chancellor)

Thornton, B.

Tomlinson, L.

Janner of Braunstone, L.

Turner of Camden, B.

Judd, L.

Warner, L.

Kennedy of The Shaws, B.

Warwick of Underclifle, B.

Layard, L.

Wedderburn of Charlton, L.

Lea of Crondall, L.

Whitaker, B.

Macdonald of Tradeston, L.

Whitty, L.

McIntosh of Haringey, L. [Teller]

Wilkins, B.

Williams of Mostyn, L. (Lord Privy Seal)

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Woolmer of Leeds, L.

Resolved in the negative, and Motion disagreed to accordingly.

Anti-terrorism, Crime and Security Bill
8.57 p.m.
House again in Committee on Clause 25.
Earl Russell Earl Russell moved Amendment No. 114E:
Page 13, line 13, after "commenced" insert "without leave"
The noble Earl said: At least this is a simple and straightforward amendment. It addresses the clause in the Bill which requires that an appeal against certification must not be commenced after a period of three months from the date the certificate is issued. The amendment seeks to add to that the proviso, "without leave", thus allowing SIAC a discretion to accept a late appeal if it saw fit.
A great many reasons can put forward as to why an appeal may be delayed which may not be the fault of the applicant. For example, those who have been the victims of torture often find it extremely difficult to tell a coherent story for some time afterwards. I believe that there is no reason at all why being a terrorist and being a victim of torture should be incompatible. Indeed, if one happens to come from Iraq, the conjunction is quite probable.
People who have been the victims of rape again find it difficult to tell their story for some time afterwards. Once more, I see no reason why women terrorists—it
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is a part of the downside of equality that one cannot assume that terrorists are male—should be any more immune from rape than others.
Many appeals are delayed because of the incompetence of the legal advice available to those concerned. If one deals with claims for asylum, one comes across such cases all the time. In some cases, the inability to appeal after a fixed period may cause real injustice. It could save the Government a good deal of trouble and save Ministers a good deal of correspondence if SIAC were to be allowed what I believe would prove to be an extremely helpful safety valve. I beg to move.
Lord Goldsmith: Perhaps I may put this into context. First, we are concerned here with the case of persons who have been detained. In those circumstances, three months would appear at first glance to be a more than ample period in which to launch an appeal. They would be visited by representatives. No physical barrier would be put in the way of lodging an appeal. Furthermore, it is worth recording that an appeal against certification is not the only remedy available. It is worth noting—this has not been referred to so far in the debate—that, as the basis for the decision is an immigration decision to refuse leave to enter, or whatever else it may be, and as that decision is a necessary pre-condition for the certification giving effect to the detention, there is an appellate procedure in relation to that aspect in any event. There is also the possibility at the end of six months of applying for a review of certification.
In those circumstances, I suggest that three months for the appeal is an adequate time. The likelihood is that an appeal will be put in much earlier. I invite the noble Earl to consider what I have said. What he has said must also be considered, but I hope that he will not press the amendment.
9 p.m.
Earl Russell: I thank the noble and learned Lord for that reply. I made no objection to three months as a general target. It seems perfectly reasonable as a general rule. My argument was not for changing the general rule but for allowing a degree of discretion. While clearly it makes a significant difference that other routes are available, nevertheless there will be some cases for which this appeal is by far the most appropriate route.
Some of the people concerned are likely to be genuine asylum seekers. One makes no presumption as to what the proportion may be, but the chance that some of them will be is quite considerable. Among that group of people, this type of delay in putting in an appeal is quite common. It can also happen because of ordinary physical illness, which can sometimes keep people in a state where they are unfit to put in an appeal for a considerable length of time.
I cannot see that it would do SIAC any harm to allow itself this discretion. After all, it would not have to exercise it unless it saw a good reason for doing so. However, I do not see any need to take the matter

541
further tonight. I shall ponder the matter between now and the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 agreed to.
Clause 26 [Certification: review]:
[Amendment No. 115 not moved.]
Lord Dholakia Lord Dholakia moved Amendment No. 116:
Page 13, line 18, leave out from "25," to "months" in line 19 and insert "within three"
The noble Lord said: In moving Amendment No. 116, I shall speak also to Amendments Nos. 117 and 118, with which it is grouped. The amendments seek to safeguard interests. The longer the detention, the more it is important that the review takes place as soon as possible. We are therefore suggesting—in all three amendments—that the review should be within a period of three months. I beg to move.
Lord Rooker: I hope that the announcement I made earlier will meet the noble Lord's desires. I indicated that after the first six months we will go to a three month review. We shall be bringing forward amendments at Report stage to that effect.
Lord Dholakia: I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 117 to 119 not moved.]
Clause 26 agreed to.
Clause 27 [Appeal and review: supplementary]:
Lord Goodhart Lord Goodhart moved Amendment No. 120:
Page 14, line 11, at end insert—
"( ) The Commission shall give reasons in writing for a decision on an appeal or review to which subsection (1) applies.
( ) Rules under section 5 of the Special Immigration Appeals Commission Act 1997 (c. 68) (general procedure) may provide for all or part of the reasons to be withheld from disclosure to persons other than a person appointed under section 6 of that to represent the interests of the appellant or of the person who is the subject of the review."
The noble Lord said: To some extent, this is a probing amendment which seeks to ensure that the commission is required to give its reasons for a decision in a form which will make it possible for the Court of Appeal to review them in the exercise of a right of appeal on a point of law.
The commission's reasons must be disclosed. We hope that the special representative appointed under the 1997 Act will be given powers to appear in the Court of Appeal, if necessary. Where, for security reasons, it is not practicable to disclose to the detainee the full reasons why an appeal has been dismissed, at
542
least those reasons can be seen by the special representative, who will be able to make use of them in an appeal to the Court of Appeal. I beg to move.
Baroness Buscombe: I should also like to speak to this group of amendments, in particular Amendment No. 123.
Lord Goldsmith: We are dealing with Amendment No. 120.
Baroness Buscombe: I am sorry.
Lord Goldsmith: The Special Immigration Appeals Commission procedure rules, to which I referred in a previous debate, provide under rule 23 that the commission must record its determination and, to the extent that it is possible to do so without disclosing information contrary to public interests, the reasons for it. That would apply to the determination by SIAC under this procedure because the rules are incorporated under Clause 27(6) of the Bill.
In those circumstances, the noble Lord may feel, perhaps, that his concern—which I entirely understand—is sufficiently met. If there is an aspect of his concern which is not met by the incorporation of those rules, I shall be happy to look at the matter further.
Lord Goodhart: My concerns are not entirely met. The problem is that the present rules allow the commission not to disclose its reasons in full because of security reasons. It would be better if the commission were required to disclose its reasons in full, because without that the Court of Appeal may not properly be able to exercise its powers of reviewing on a point of law. The security interest should be protected by allowing the reasons, or part of the reasons, to be withheld from the detainee and shown only to the special representative. The special representative can then conduct the appeal—which would no doubt be heard in camera in the Court of Appeal—and would have full access to the whole of the reasons of the commission.
Lord Goldsmith: I am grateful to the noble Lord for clarifying that point. As I have indicated, I am happy to consider it further but I am not in a position to say any more at this stage. I hope that that is of some help to the noble Lord.
Lord Goodhart: I think that we have taken this matter as far as we can go. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Baroness Hooper): I should tell the Committee that if Amendment No. 121 is agreed to, Amendment No. 122 will be pre-empted.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 121:
Page 14, line 37, leave out from "certificate" to end of line 38 and insert—
"(a) on grounds of change of circumstances, or
(b) where the initial certificate was cancelled because of a technical irregularity."
The noble Lord said: This amendment relates to subsection (9) of Clause 27:
"Cancellation by the Commission of a certificate issued under section 21 shall not prevent the Secretary of state from issuing another certificate, whether on the grounds of a change of circumstance or otherwise".
Amendment No. 122 seeks to leave out "or otherwise". It is the very least that can be done. The phrase is very wide. It could mean that the commission might come to a particular conclusion and the next day for any reason the Secretary of State could issue another certificate within the framework of his responsibilities.
Amendment No. 121 attempts to make some sense out of the subsection. It proposes that the Secretary of State should be entitled to issue another certificate,
"on grounds of change of circumstances, or … where the initial certificate was cancelled because of a technical irregularity".
Where the commission simply disagrees with the exercise by the Secretary of State of his power to issue a certificate, it seems to us that the issuing of another certificate immediately, on any grounds at all, is inappropriate. I beg to move.
Baroness Buscombe: I support Amendments Nos. 121 and 122.
I want also to speak briefly to Amendment No. 123. We agree with the overall gist of the amendment; namely, that the subsection is too broadly drawn. We believe that the circumstances in which a fresh certificate can be issued must be narrowly defined.
In the event of a certificate being cancelled it should not be reissued without very good reason; and it should not be reissued without the support of fresh evidence which was not, for whatever reason, available when the original certificate was issued. I commend Amendment No. 123 to the Committee.
Lord Rooker: These three amendments deal with a matter that was raised by the Joint Committee on Human Rights. We fully understand the wish of Members of the Committee to ensure that the Bill does not give the Secretary of State arbitrary power to reissue a Clause 21 certificate in defiance of a decision by SIAC to cancel the first certificate. We have given careful thought to whether we can find an alternative formulation to the one in Clause 27(9). We have riot been able to find one.
There is a variety of circumstances in which it may be appropriate for the Secretary of State to make a fresh certificate after SIAC has cancelled the original. Perhaps I may give a few examples which I hope will help the Committee in case the matter receives further consideration.
544
First, if there is a change in circumstances and matters have moved on from the time when the original certificate was made, there may be new reasons for considering that a person now qualifies as a suspected international terrorist, notwithstanding SIAC's decision.
Secondly, the same basic case against an individual may exist, but new evidence may come to light which substantiates a previous suspicion or belief. For example, there may have been a belief that a person was a member of a proscribed organisation but SIAC may have concluded that there were no reasonable grounds for that belief. New information may subsequently emerge which strongly supports the original contention, and that may justify a fresh certificate.
Thirdly, there are technical matters where the certificate was cancelled for procedural shortcomings. Fourthly, a higher court might reverse a decision of SIAC, which would mean a fresh certificate being issued unless that higher court resurrected the certificate itself.
None of the amendments would catch all those possible scenarios. One solution might be to adopt an amendment that covered all of them, but if we try to create an exhaustive list there is always a risk that something will be overlooked. That is why we do not favour that approach.
Another way would be to delete subsection (9) and argue that the Secretary of State would be able to issue a fresh certificate in appropriate cases without the need for express provision. However, that also carries risks. There are examples in other Acts of Parliament in which mention is made that certain actions do not prejudice the future use of the same power. Paragraph 21 of Schedule 2 to the Immigration Act 1971 relating to detention is one such instance. If the Bill is silent on the matter, it is not certain what the consequences would be. That is why we prefer to have the provision in the Bill.
I confirm that our intention is that the Secretary of State will issue a fresh certificate only if it is justified. We rely heavily on SIAC, which would rightly take a dim view of any Secretary of State who seemed to be ignoring its decisions. I am sure that it would cancel any inappropriately made future certificates in short order. Furthermore, it might well be a breach of Article 5(4) of the European Convention on Human Rights, and perhaps also of Articles 6 and 13, for a Secretary of State to adopt such a course.
I fully appreciate that the matter was considered by the Human Rights Committee. We have genuinely looked to see whether we can meet the concerns raised, but for the reasons that I have given I hope that the noble Lord and the noble Baroness will be satisfied that we are acting honourably and will not press their amendments.
9.15 p.m.
The Earl of Onslow: This sounds terribly like double jeopardy. There is somebody whom we do not quite have enough evidence to lock up, but we think that we ought to lock him up anyway. Along comes SIAC and says that we should let him go. The Minister then says that he has a little more evidence, so the Government

545
lock the man up anyway. That is exactly what is described and it sounds to me like double jeopardy. I thought that once a man had been acquitted it did not matter what he did—he should be acquitted and that was that. The more that one hears of the Bill, the more dangerously it goes to the heart of our liberties. I know that we are talking about only 10 or so people and about a horrendous amount of damage done by terrorism, but we must be very careful about our ancient liberties because they are more important than anything else. That was double jeopardy.
Lord McNally: The Minister has conceded that the paragraph is very wide, but he pleads with us to believe his honourable intentions. Nobody doubts his honourable intentions, but there is the opening for a cat and mouse act here. The Minister has previously put a lot of emphasis on the responsible role that SIAC is going to play, yet the Bill leaves a blank cheque for the Home Secretary of the day to defy or ignore SIAC.
Amendment No. 121 may not be absolutely right or drawn widely enough, but it at least goes in the right direction. Perhaps on Report we could secure an amendment that would allow the Home Secretary to take on proper changes in circumstances but gave him something less than a blank cheque.
The Lord Bishop of Portsmouth: I hope that the Government take on board what the noble Earl, Lord Onslow, and the noble Lord, Lord McNally, have just said and think again.
Lord Rooker: I do not accept the description of the noble Earl, Lord Onslow, although I understand his concern. We share that concern in a way. We have spent some time looking at the issue, particularly in view of the comments of the Human Rights Committee. We are conscious of the efforts that have gone into that Joint Committee of both Houses and we take it very seriously.
As I have said already, without any commitment, we are continually looking at the Bill during its passage—at the issues that we have already dealt with and at the issues that are still to come before the Committee. We are constantly reviewing our decisions. We have had a look at the issue already, but we shall not stop doing so. If we can find a way to meet the desires of the Select Committee, we shall certainly do so. We have not stopped working on the clause. For tonight, I ask the noble Lord to withdraw the amendment but I assure him that we shall continue looking at the issue.
Lord Thomas of Gresford: There are none of the Minister's examples that could not have been encompassed in the words set out in Amendment No. 121, because a "change of circumstances" means exactly that. Fresh evidence would be a change of circumstance. Amendment No. 121 does not ask for too much. I welcome the Minister's assurance, but we shall certainly return to this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 122 and 123 not moved.]
On Question, Whether Clause 27 shall stand part of the Bill?
Lord Campbell-Savours: Over the past three days, I and many other Members of the Committee have spent about 16 hours listening to debates and wanting to intervene. I have sought not to do so except on this narrow issue.
From those debates and comments outside, it seems that SIAC's integrity is most important to the Bill's implementation. I tried to find out about SIAC's operations since it was established in 1997. Little material is available in the public domain, apart from the Report of the Review of Tribunals by Sir Andrew Leggatt which deals with a number of aspects of SIAC's operation and how the tribunal's practices and procedures have been reviewed for conformity with the European Convention on Human Rights and to meet any particular concerns. The report says that the commission was set up in response to criticism of the Government by the ECHR.
Debates in this House and more widely have included discussion of whether there is some deficiency in the procedures, particularly in respect of the special advocate. A person making appeal may not feel that their case is being adequately heard. On 29th July 1998 the Lord Chancellor stated:
"The special advocate will see all of the Secretary of State's material. He will be able to test it; for example, by cross-examining witnesses. He will be able to make representations to the commission; for example, about the material to be withheld from the appellant. He will not, however, be able to communicate with the appellant as a representative normally would".
That is obviously the basis of the concern that has been expressed. The Lord Chancellor continued:
"There is a risk of inadvertent disclosure through an apparent innocent remark".
That is the explanation given by the Lord Chancellor. He went on:
"He will be able to apply to the Commission to seek specific information from the appellant".—[Official Report, 29/7/1998; col. 1588.]
It is difficult to understand why,
"inadvertent disclosure through an apparent innocent remark",
could be deemed sufficient justification. Section 6 of the Special Immigration Appeals Commission Act 1997, which established the SIAC explains the basis on which such persons are appointed. They are supposed to be trusted by the state and the Government are meant to have confidence in their reliability. I presume that these are people who understand exactly what sort of information they are not allowed to reveal under official secrets legislation. Surely they are capable of having a conversation with an appellant without—again quoting the Lord Chancellor—disclosing information through an apparently innocent remark.
I felt there might be room for compromise on that principle. Surely there are lawyers who are capable of having direct contact with the people they are representing for the purposes of the tribunal.

547
I move on to what the Lord Chancellor said at col. 1589:
"We have imposed on the Secretary of State the requirement to notify the Attorney-General of the potential need for the appointment of a special advocate at the time he decides to oppose the appeal. In that way, the special advocate will have the maximum time possible to communicate freely with the appellant. Once he has received the Secretary of State's material, the special advocate's access to the appellant will be restricted, but he will be able to apply to the commission for authority to seek information, in connection with the proceedings, from the appellant or his representative".
We come back to the same point. Why should contact be restricted? If that person can be trusted not to reveal information which is sensitive to national security, why should not that lawyer have full access to the appellant in that particular case?
Finally, we have been told—indeed I read in a number of documents and the secretary of the commissioner said—that information relating to membership of the commission is confidential. In reality the chairman of the commission is known; it is in Whitaker's Almanack. Indeed, I think it was referred to earlier in today's debate. Therefore, in so far as the name of the chairman of the commission is made public, is there some other reason—apart from the case of a person who has knowledge of security matters—why the name of the person from the immigration appellate body should not also be made public?
Lord Thom as of Gresford: I support the noble Lord's criticism of SIAC. He puts his finger on a very important point.
When the special advocate appears before the commission, he will be given access to all the material that the commission will see. The secret material will, I imagine from my own experience, consist of telephone intercepts, surveillance records and so forth; and possibly informers, though I would be surprised if the names of the informants are revealed to anybody. That is the sort of information that is held close to the chest.
The submissions that will be made to the commission will be, on the one hand, from the advocate on behalf of the Home Secretary, saying, "Look at all this. He did this. He did that. He did something else. And because he did those things we have a suspicion that he is a terrorist". The special advocate will be in the unique situation of being unable to go to his client and say, "Look, it is said that you were in such-and-such a place on this day; that you were talking to a well-known terrorist; that you received a letter from somewhere else". He will not be allowed to ask the client where he was, so the client could say, "No, that is wrong. I was somewhere else. They have got the wrong person".
There are no proceedings before a court of law in this country where the advocate cannot represent his client by taking instructions from him. It is the basic principle of audi alteram partem; how on earth can the tribunal hear the other side of the coin if the person concerned does not know what the case is against him?
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Since the 17th century the courts of this country have protected the identity of informers, long before the telephone or cameras were invented. That was something that was traditionally secure: never reveal the identity of informants. The courts have dealt with that for centuries. The courts have dealt with telephone intercepts, surveillance and matters which might reveal the methods of the security services. That is what they are concerned about. They have dealt with that in trial after trial. Noble Lords who heard the speech of the noble Baroness, Lady Kennedy, were listening to perhaps this country's most experienced advocate in terrorist trials. I cannot think of anyone who has had more experience in this area. She will have been dealing with such matters all the time. She comes to a firm view. My experience of terrorist trials is less although I have some, and I have a clear view as to how the identities of informers and the methods of the security services can be and are protected.
We have here a system which the noble and learned Lord the Attorney-General said recently was better than judicial review. That is nonsense, but we reserve that for later. I am amazed that the Government claim that a system whereby the advocate cannot take instructions from his client to controvert the facts and prepare his argument is better than the present system.
9.30 p.m.
The Earl of Onslow: It is ironic. I hope that I am right on this. If the man is charged and there is enough evidence against him for the Crown Prosecution Service to think that it can lock him up, he has the right to see the evidence. He has the right to instruct an advocate. However, if the Crown or the Home Secretary does not have enough evidence to lock hint up, he does not have the right to see the evidence. That strikes me as being very odd.
Lord Goldsmith: I am happy to deal with this point under debate on whether Clause 27 shall stand part I am not convinced that it is the most logical place, but I do not want in any way to avoid the issues.
I go back to what has been said. There will be sensitive intelligent information in certain cases which could not be revealed without compromising sources or prejudicing the security of other people. It is not difficult for any noble Lord to consider circumstances in which, if a hidden source—for example, someone inside a group, under cover—were to reveal that this happened on this particular day or that that conversation was heard on that particular day, it would put the life of that source at risk and prevent that source continuing with other work.
The hard choice is that that is not material which can be put before a court. At Second Reading I made the point that in circumstances where the court decides to use the PII system, it is saying that certain information that the prosecutor does not want to rely upon need not be disclosed because there is a general rule that unused material—even if the prosecutor does not want to rely on it—may be put forward. The noble Lord's example of the position of viewpoint of an observer is exactly such a case. It may not matter where the

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viewpoint was. The judge may say, "It is not relevant to this case. You don't have to reveal that because if you do so I recognise that you will be compromising a source: where this observer is being seen from". As the noble Lord, Lord Thomas, said recently, the court looks at the information, decides that it does not need to be disclosed and does not rely on it. The court cannot rely on it.
We are faced with this situation. Sensitive intelligence information shows that there is a person who, it is reasonable to believe, is a risk to national security. Because we cannot reveal that information without prejudicing source or national security, are we simply to say that we must do nothing about it? In the Chahal case the European Court of Human Rights said that it recognised that the use of confidential information might be unavoidable where national security was at stake. The question is: how do you use that material? How do you allow SIAC to review it? I refer to the special advocate procedure which the European Court commended in Chahal.
With respect to the noble Lord, Lord Thomas, he does not represent accurately what the special advocate procedure is. First, the special advocate—this is rule seven of the rules—has a function to represent the interests of the applicant. That means making submissions, cross-examining witnesses and making submissions to the commission. Before any of the sensitive information has been received, he is at full liberty to communicate with the applicant, to talk to him and to get any information he wants from him. After he has received the sensitive information, he needs to apply to the commission if he wants to talk further with the appellant. Rule 7(7) states that the special advocate may communicate with the appellant and his representative. At any time after the Secretary of State has made the material available under Rule 10(3), the special advocate may seek directions from the commission authorising him to seek information in connection with the proceedings from the appellant or his representative. So in those circumstances the commission can control—
Lord Campbell-Savours: May I—?
Lord Goldsmith: Will the noble Lord allow me to finish the point and then I shall gladly give way? In those circumstances the commission can control whether there is or is not a security issue about saying to someone, "I want to know where you were on 14th June because that is what it is all about". The casual comment, "14th June", might—but the special advocate may not know it—bring home to the appellant the fact that he knows where he was on 14th June, that he spoke only to a certain person and that that person is, therefore, an informer.
Lord Campbell-Savours: All the papers will have been seen by the three members and also by the special advocate. Therefore, the special advocate will have no knowledge more or less than the other three persons. Therefore, why is he not capable of making that
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judgment independently of them? Why must they say, "You cannot do this; you cannot raise that; you cannot refer to that date and you cannot talk about that conversation?" If he or she knows the gravity of the case as well as the three people sitting in adjudication, why cannot he make that decision himself?
Lord Goldsmith: I suggest that the answer is that the procedure allows for a reasoned discussion in which the Secretary of State's representative can no doubt point out why there is a particular difficulty about asking about the 14th June. The commission can then make a reasoned decision in relation to that.
The Earl of Onslow: Can we go back to this mythical 14th June? If the man is criminally accused in a court, the 14th June will be made public. Therefore, the risk to security, if he is one, is the same as it would be if the man then pleaded not guilty. I cannot see why you can say it when the chap is being charged but not when he is being locked up by administrative order.
Lord Goldsmith: Perhaps I may help the noble Earl. It may not be apparent to him that there are criminal prosecutions which do not take place because they cannot take place without revealing sensitive intelligence information and compromising it. In those circumstances it is not that the material is somehow put before the court in some way that the applicant does not see it; that information cannot be used. In those circumstances the prosecution cannot take place. That happens, as the Committee will know. The noble Lord, Lord Thomas, will know well that one of the reasons that in a number of cases certain defendants will consistently ask for disclosure of information about informers or about sources is because they hope that, if the prosecution is obliged to reveal the source or the information, it will not be prepared to do that as it would compromise the source and put people's lives at risk and the prosecution cannot take place.
We are dealing with a different situation where there is a reasonable belief that someone is a national security risk—someone who has no right to be here and for whom there is a right to deport but we cannot deport because we are concerned about his or her human rights. That is one point and one point only. In the circumstances mentioned by the noble and learned Lord, Lord Mayhew, do we let those people roam free or do we find a way of allowing the decision to be reviewed judicially by a committee which includes a High Court judge, another judge and another member in a manner that allows a good working arrangement so that the matter can be dealt with? I hope that I have said enough.
Lord Thomas of Gresford: Has the noble and learned Lord ever cross-examined a witness in a case involving the liberty of the subject without any instructions from his client? Has that ever happened? Can he envisage it? If he has been in such a situation, how effective was it?
Lord Goldsmith: There appears to be a view that SIAC is not dealing with these cases. The reason for

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setting up SIAC was, following the Chahal case, to deal with cases where the Secretary of State had formed a view that it was not conducive to the public interest that someone should stay here but, rather, that that person should be deported. Such a view would be based on intelligence information. That is why SIAC was set up.
The circumstances that I have set out are not different from those proposed under the Bill. I have the testimonial of the noble Lord, Lord Lester of Herne Hill, that it is a fair compromise between the national security issue and the protection of individual liberties. It must be ensured as far as possible that the appellant knows the nature of the case against him. Where that is not possible, it must be ensured that an experienced, independent advocate is available to put it forward, and the matters must be represented and cross-examined.
Lord Campbell-Savours: I am sorry to press my noble and learned friend on this matter. But perhaps I may quote again what the Lord Chancellor said on 29th July 1998. He said:
"The special advocate will see all of the Secretary of State's material".—[Official Report, 29/7/98; col. 1588.]
That is, everything; all the material which is highly sensitive and highly secret. If the special advocate is capable of absorbing that material and not breaching security, why does he not have the right to speak directly to the appellant after the Secretary of State has submitted the case to the tribunal?
Lord Goldsmith: If the commission so agrees, then he can speak to the appellant and seek particular information.
Lord Campbell-Savours: Particular? Why does it have to be under those controlled conditions? That is what I am driving at. Why does he not have a general right of access so long as he does not breach matters of national security?
Lord Goldsmith: It is to ensure that inadvertently sources do not lose their lives and to ensure that national security is not compromised because a person does not appreciate the particular circumstances. If there is no risk of that happening, the commission will say that there is not a problem in his asking where someone was on 14th June.
I cannot improve on that. It is a system which enables the interests of the applicant to be safeguarded. It works already. It worked in the Rehman case. In effect, the individual was represented by a special advocate who did such a good job that he persuaded SIAC to overturn the decision of the Secretary of State. This is no impotent procedure. It is a robust protection for the appellant, consistent with protecting national interests. Therefore, I ask that Clause 27 stand part.
Lord Phillips of Sudbury: Before the Minister sits down, I understand the intense difficulties of the
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dilemmas that are being dealt with. If the Attorney-General were the special advocate, and knowing that the procedure allows the special advocate to go back to his client only having seen the evidence with the consent of SIAC, would he not then consider it to be his duty to obtain from his client, before he sees the evidence, an extremely long, detailed deposition of facts relating to all the possible contingencies which might give rise to the order being sought? Will the Attorney-General at least assure us that the procedures will permit that? One could be talking about four of five days' work to get a single statement from the person whose liberty is at stake.
9.45 p.m.
Lord Goldsmith: I absolutely assure the noble Lord that before the material has been seen by the special advocate, he can spend as much time as he wishes with the appellant and take as much detailed information as he wishes. The commission holds the balance. I said in an earlier debate—I shall not return to this in detail—that the Secretary of State can be ordered to provide information to the applicant. The commission can hold the balance as to what the special advocate can reveal to the applicant or the questions that he can put. That is a level playing field and a fair balance between the two sets of interests.
Clause 27 agreed to.
Clause 28 agreed to.
Clause 29 [Duration of sections 21 to 23]:
Lord Goodhart Lord Goodhart moved Amendment No. 123A:
Page 15, line 14, leave out "subject to the following provisions of this section"
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 123B, 123C and 123D.
This is an important group of amendments. Without going into any detail, at Second Reading speaker after speaker condemned the Bill on the grounds that it was far too big, that it contained far too much material that was not directly—or even seriously indirectly—connected with terrorism and that it was being rushed through in a way that did not give time for proper consideration. I believe that all of those condemnations are true.
For that reason, my honourable friends in another place joined the Conservatives in another place and put forward a detailed proposal that would establish a sunset clause to cover all of the Bill except for Part 12, which is about overseas bribery. That was debated at the beginning of the Committee stage. The proposal was that the Bill should be reconsidered, by virtue of a sunset clause, within a time that varied according to the contentiousness of the part that was being considered. It was proposed that the sunset clause relating to Part 4 should come into operation 12 months after the Bill was passed; that the sunset clause relating to Parts 3, 5, 10, 11 and 13 should come into operation after two years; and that the sunset clause relating to all other parts of the Bill, with the exception of bits of Part 12, should come into operation after five years.

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That proposal involved a real sunset clause, not simply a renewal of the Bill by means of a statutory instrument. It meant that the Bill would cease to have effect permanently unless, within the time specified in each of those cases, new primary legislation was passed to ensure that the Bill was dealt with—that the relevant part of the Bill was either dropped or dealt with again through the full parliamentary procedure.
We on these Benches believe that if the Bill is to go through in anything like its current form, it is essential that it should, at the appropriate time, receive the full consideration and involve the proper timescale that it currently lacks.
I shall obviously not go into any details. Unfortunately—because of the extreme speed with which the Bill was brought before your Lordships' House—we failed to table the necessary amendments to introduce a sunset clause for Parts 1, 2, 3 and 5, which were debated yesterday. Although they do not now appear in the current Marshalled List, we have put down sunset-clause amendments that can be debated on Monday and Tuesday. They will cover Parts 6, 7, 8, 9, 10, 11 and 13.
In response to the debate in the House of Commons, the Government agreed to introduce one sunset clause and only one, in relation to Part 4. That appears in Clause 29 and provides for the initial effect of Part 4 to continue for 15 months. Thereafter it will be possible to renew that provision by statutory instrument for successive periods of not more than a year. At the end of five years a proper sunset clause will come into operation and if Part 4 is to continue, it will have to undergo the full parliamentary process before then.
We recognise and welcome that as a step in the right direction. However, it is only a step and in our view the step is not big enough. We believe that Clause 4 requires consideration much sooner. It introduces the wholly exceptional power to detain people without charge and without trial for an uncertain period of time because it depends on circumstances, in particular the willingness of a third country to accept the detainee who is outside the control of the Government.
We consider that it is quite inappropriate to say that this matter cannot be reconsidered fully through the proper parliamentary procedure until five years have elapsed. We believe that this procedure should be looked at as soon as possible so that we can consider, on a slightly more relaxed occasion, whether a remedy as draconian as this is still required in the light of the terrorist threat as it may appear in due course.
This is a matter of such importance that we believe that it should be brought back 12 months from the time when this Bill is passed. That would mean that the Government would have to reintroduce legislation after the Summer Recess next year. It would be possible to deal with it, with full, proper and due consideration, more quickly than the present Bill because there would be only one part to deal with. If, in a year's time, the terrorist threat still requires such
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a remedy, it will be possible, according to our proposal, to consider the matter before time expires some time in the middle of December next year.
On Monday, when we consider other sunset clauses, we shall not return to this matter. At the moment we are considering the sunset clause on Part 4 only, but we firmly believe that we should return to the matter as soon as possible and, in our view, "as soon as possible" means within the next 12 months. That is twice the length of time that my noble friend Lord Jenkins of Hillhead told us at Second Reading that he allowed for the Prevention of Terrorism Act for which he was responsible in 1974. We believe a year is enough time for such legislation and that we should reconsider Part 4 in a year's time. I beg to move.
Baroness Buscombe: Perhaps I may say, on behalf of Her Majesty's Opposition, that we have great sympathy with the amendment moved by the noble Lord, Lord Goodhart. We have tabled a sunset clause amendment for what I hope will be a full debate on either Monday or, more likely, Tuesday of next week. We shall reserve our right to debate it then.
Lord Rooker: I have listened to the noble Lord, Lord Goodhart. With the best will in the world, it took a while for him to mention the fact that the sunset clause had been inserted. I took with a pinch of salt the comments of the noble Lord, Lord Jenkins, the other day. He claimed that the Bill had arrived unamended from the other place, ignoring the fact that the sunset clause had been inserted. That was a major change. I suspect that if we had inserted a one-year sunset clause, noble Lords would have said, "You have to do it every six months".
We have derogated from the European Convention on Human Rights, a convention to which this country has been signed up to under all governments, for 50 years. We have derogated for five years. That seems sensible to us. We accept the point about the importance and seriousness of this legislation and the effect on the liberty of individuals. We fully accept that we originally planned to bring it forward by order after five years. However, we have inserted a full sunset clause so that, if they have not been repealed earlier, the powers lapse on 10th November 2006.
As it stands, Clause 29 provides adequate parliamentary safeguards. As the noble Lord, Lord Goodhart, reminded us, after 15 months we shall have the opportunity to consider an affirmative resolution. We shall have the report from the independent reviewer who will check what is happening on the key clauses. Thereafter, there will be annual renewal on the same basis for five years.
We must remember that terrorists do not work on a six-month timeframe. It is obvious from what we have read in public print that it took years to plan the events of September 11th. They have planned for events which we do not know about. That has probably already taken place. Frankly, to work in one-year timeframes for primary legislation is to send a signal that we are not taking international terrorism seriously. I have made it clear today, although no one

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seems to have taken it on board, that we are genuinely concerned and apprised of the speed at which the legislation is going through the House. We want to meet the desires of Members of both Houses. Hence the proposal at which I hinted or which I floated for noble Lords' consideration earlier today. My remarks then covered the whole Bill, not just one part. They covered the whole Act of Parliament, which I hope the Bill will become.
The designated derogation order has been approved for a life of five years. That is the benchmark we used for the sunset provision. There is the underlying fact that the threat we face has created that public emergency. We need to designate that before we can go for the order. Anyone who thinks that this is a fleeting emergency is not living in the real world. Parliament would not be taking the issues seriously—I think the public would see it that way—if every 12 months we were to introduce a brand new piece of legislation which had to go through all the processes in the normal, leisurely way. The implication is that there would not be emergency primary legislation each year but that it would go through the normal process. Such legislation may take six to seven months from introduction to Royal Assent. That would be quick for most Bills, but it would not be practical on this.
I accept that how the deadline is set is a matter of judgment. However, the derogation order from the ECHR is for five years. There will be further debates next week on sunset clauses on further important parts of the legislation. I shall be interested to hear the kind of case noble Lords make on Monday and Tuesday of next week.
10 p.m.
The Earl of Onslow: The noble Lord, Lord Rooker, said, quite rightly, that the gentlemen who flew aeroplanes into the side of the World Trade Center were absolutely awful and we needed to do something about it. I do not believe for one moment that had this Bill been an Act of Parliament on 1st January 2001 it would have made one iota of difference to what happened. If anybody can show me any evidence that this Bill would have stopped the events of September 11th I shall buy him a pint afterwards.
Legislate in haste and repent at leisure. We must have a sunset clause. If the noble Lord believes that it takes seven months to get a Bill through Parliament, so be it. If there is a 12 or 18-month sunset clause, the Government should start to plan the new legislation a year before so they can do it at a gentle pace before the old Act falls. But I remain to be convinced that this Bill would have made a blind hit of difference to the plans of someone in Afghanistan, Hamburg or wherever to attend a flying school in America and say that he wanted to learn how to fly and was not interested in either taking off or landing. I do not believe that this measure would have had any effect. Please, please, let us listen to the words of the noble Lords, Lord Thomas
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of Gresford and Lord Goodhart. Above all, we must listen to the Front Bench on this side about proper sunset clauses.
Baroness Williams of Crosby: I do not intend to intervene more than very occasionally in this debate, from which I am learning a great deal. With respect to the noble Lord, Lord Rooker, I found his argument rather hard to take. One of the key issues that terrorists are concerned about is the setting aside of democratic process; indeed, it feeds the very arguments that they make. I believe that on consideration the noble Lord would agree that if there were evidence of further terrorist attacks—that is perfectly possible—this House and another place would find every means possible to get even primary legislation through Parliament extremely quickly. There would be no question of a delay of seven months. In my time in this House and in another place I have witnessed primary legislation being passed within hours, or a few days—certainly not the seven months to which the noble Lord referred.
If there is no requirement that primary legislation must be introduced again on an annual basis, it is all too probable that this measure will remain on the statute book and gradually will be taken for granted, which is exactly how liberties disappear. Liberties disappear by a process of gradual reduction, which always looks all right at the time. They finally disappear and people cease to be used to them.
I hope that the Government will reconsider very carefully their opposition to this particular amendment which has the support of the Opposition and the Liberal Democrat Benches. I have a serious fear that if terrorism begins to disappear—I do not argue that it will but it could—to allow this measure to remain on the statute book for a period of five years, with all the temptations that that offers to deal with people by an administrative and not a proper legal and constitutional method, is to take a very large risk for which there is no justification.
Lord Elton: One of the paradoxes of the fight against terrorism is that one must surrender a bit of what the terrorists are trying to take. One must lose some freedom to be able properly to resist them, and that is the subject of this legislation. That point is central to our constitution. It is essential, therefore, that it should not be taken for granted. To make one slight adjustment to the very powerful speech of the noble Baroness, there will be no need to do it in a hurry. As my noble friend Lord Onslow pointed out, one will know three years ahead, if that is the period, when the next piece of legislation is required. It can be drafted .at leisure in the light of experience of the legislation that is already being operated. It takes parliamentary time. But that is what parliamentary time is for. It is for the protection both of the security of the state and the liberty of its subjects. That is what we are here for and that is what we should be doing.
Lord Rooker: The idea of having fresh primary legislation every year is not credible. That is what is being asked for.

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We have derogated already for five years. The pressure on us would be enormous to reduce that. I must say to the noble Baroness that we cannot go on reducing forever. The derogation was a major step. It was not one taken lightly. I am sure that she fully accepts that. That in itself has a defined shelf life. I cannot visualise what the situation will be in five years—or ten years because there can be a further advance on that.
The noble Baroness and the noble Lord, Lord Elton, were correct. In some ways we are giving up a little of what we have in order to protect the rest. That is the price that we must pay. The basic concept is that our liberal democracy is under threat from those who wish to destroy it.
What do we do? Do we acquiesce to their demands in order to keep our principles? That would end up with us being destroyed. All we ask for is tightly controlled constitutional—I do not accept that they are not constitutional—powers of a limited duration. They will be fully scrutinised and reviewed by an independent reviewer—who happens to be a Member of this House—after 15 months and then every year.
Earlier today I offered the opportunity to have a further look at the way the Act works at that point in time. We are going up every avenue that we can to meet demands. But to have a tighter constant revolution of primary legislation would not make sense. Clearly, next week we shall debate these issues on the other parts of the Bill.
The derogation and the removal of people's liberty are absolutely and crucially important. The sunset clause in this part of the Bill is there for a specific reason. It is as well that it is there. We have put it there because, having considered the matter and listened to what has been said, in our view it is the best means of protecting our own liberties and making sure that we get legislation that Parliament can look at on a regular basis. It is not as though we shall not visit this matter again for five years. If that was the case, I would not have a leg to stand on in asking for the amendments to he rejected.
Lord Goodhart: Nothing in this group of amendments prevents the Government from getting what they want in terms of the right to detain suspected terrorists. All they impose is a duty on ourselves and on the Government to bring the matter back for further and fuller consideration within a period of 12 months. That is a small and reasonable price to pay for this extremely exceptional power to detain without trial, which may, I admit, be a necessary option in the special circumstances which now prevail. That may or may not be the case in 12 months' time.
There is nothing in the amendment that prevents the Government from bringing forward new primary legislation in 12 months' time if they feel that it is necessary to continue this legislation in force. But it has been clear from the debate today that there is a great deal that is controversial about this part of the Bill. We have had lengthy debates and very powerful
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challenges to the Government over, for instance, the SIAC procedure and whether it is adequate to meet the tasks that will be placed on it. So I must say that I am deeply disappointed by the Minister's reaction.
I have nothing to add to what was said eloquently by several speakers in this short debate—in particular by my noble friend Lady Williams and the noble Lord, Lord Elton. We shall unquestionably want to return to the matter later during the Bill's passage, either through pressing our amendments or, if we think it a better course, supporting the amendment that we understand that the Conservatives will shortly be tabling. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 123B to 123D not moved.]
Clause 29 agreed to.
Clause 30 [Exclusion of legal proceedings]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 124:
Page 16, line 7, at end insert "save to review compliance with any rules made under section 5 of the Special Immigration Appeals Commission Act 1997 (c. 68)."
The noble Baroness said: Following the Second Reading debate in another place, the shadow Home Secretary consulted lawyers distinguished in the field to seek advice on whether, under the Bill as drafted, appeals on a point of law would include appeals on the point of SIAC failing to follow its own procedures. In debate in another place, my honourable friend Oliver Letwin asked the Home Secretary to reassure us that if it turns out that the ability to appeal on a point of law does not provide for appeals relating to the procedure of SIAC, the Home Secretary would immediately amend the law to ensure that such appeals were possible.
The Home Secretary agreed to,
"examine that matter for the purpose of clarification between now and the Bill's entry into the House of Lords".—[Official Report, Commons, 21/11/01; col. 392.]
The Attorney-General will recall that I referred to that agreement during Second Reading in your Lordships' House. The Attorney-General was kind enough to respond. He said:
"The noble Baroness, Lady Buscombe, asked whether or not a point of law could include the fact that SIAC failed to follow its own procedures. I believe the better view is that it could. So there is a proper judicial route".—[Official Report, 27/11/01; col. 284.]
I read that response to mean acceptance by the Attorney-General that there is a grey area. I hope that, in the spirit of that response, the Government have further considered the matter and will accept the amendment. I beg to move.
Lord Dholakia: My Amendment No. 125 is grouped with the amendment. We are concerned about the matter of exclusion of legal proceedings. It would be helpful if the Minister would explain why no court or tribunal other than SIAC could question the actions of the Secretary of State.
Earl Russell: I should also like to touch on Amendment No. 125. Clause 32 bears a remarkably close resemblance to the words in the Foreign Compensation Act 1950, which gave rise to the case of Anisminit, of which we have heard a good deal. That is a rather unfortunate precedent. In fact, it could be described as a red rag in front of the corpse.
I should also like to respond to what the noble Lord, Lord Rooker, said about five minutes ago. He said, not for the first time, that if we are to preserve our liberties, we have to sacrifice a large part of them—we must react; we must do things. With respect, that is hypothesis; it is not necessarily fact. If he looks at the history of state reaction to terrorism over the centuries, terrorism has benefited a great deal more from the over-reaction of the state than from its under-reaction. We might all bear that point in mind.
10.15 p.m.
Lord Goldsmith: Amendment No. 124 deals with a specific point and the noble Baroness, Lady Buscombe, was right in quoting what I said at the end of the Second Reading debate. I said that in my view the better view was that the Court of Appeal would view the question of compliance with procedure in appropriate cases as a matter of law, and therefore one in which they would have jurisdiction.
I understand the point that she is making. I still hold that view but I cannot say to the noble Baroness that I have taken my thoughts on that point any further. I shall therefore invite her to withdraw the amendment today. I shall give further thought as to whether I can dispel the lurking doubt that I have left in her mind and shall return to the matter.
Amendment No. 125 is potentially more wide-ranging because that picks up the effect of the SIAC procedure. I have spent a great deal of time today dealing with aspects of the SIAC procedure. I must take issue, I hope courteously, with a suggestion made by the noble Lord, Lord Thomas of Gresford. On Second Reading I said that judicial review was an inferior procedure to deal with these problems and he described that as nonsense. I am sorry he described that as nonsense because it was not. It was absolutely right.
The European Court of Human Rights in the Chahal case stated that,
"the availability of judicial review and habeas corpus to review the decision to detain Mr Chahal before the domestic courts did not satisfy the requirements of the European Court of Human Rights".
It did not permit the review of the reasonableness of the decision of the Secretary of State. The SIAC procedure was developed in order to deal with the criticisms which the European Court of Human Rights had.
That is why the noble Lord, Lord Lester of Herne Hill—I hope that I do not misquote him—believes that SIAC was a fair compromise. It dealt with those
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problems. As I said at Second Reading, the SIAC procedure, or the Canadian variant of it, was proposed by Amnesty, the Air Centre and the Joint Welfare of Immigrants Association to the European Court of Human Rights in the Chahal case. The short answer to the proposition that judicial review would be better than SIAC is answered conclusively; it is not. There is nothing that SIAC cannot do that judicial review could do.
Why do we believe that SIAC procedure is better. It is because SIAC has a High Court judge, so it has the judicial element, and another judge in addition to a person with expertise in security matters and therefore can judge well and properly the security information. It has the competence already to consider two key issues: national security and immigration. Those are the issues it has been set up to deal with and those are the issues it would be required to deal with under the Bill. It was there to meet the points raised by the Strasbourg Court. I invite Members of the Committee to consider whether there is any point in setting up a specialist body of that kind and then not inviting it to do the work.
Let me pose the question in this way: let us say one went down the route of saying, "We want to have judicial review but we accept that it is necessary to deal with the special security-sensitive information". What would the court look like then? We would start with a judicial review court which would have a High Court judge. We have that. Then we would say, "We have to find a procedure to deal with the sensitive intelligence information. What is the best way of dealing with that? We must ensure that the tribunal has the information and that there is some way of someone testing it on behalf of the appellant if the appellant cannot see it. Let us have a special advocate. Let us ensure that there are good procedures to make sure that the applicant can see as much as possible".
Ultimately, we have the body which is SIAC. The commission is in place and it would not make sense to look for alternatives. We have in place an appeal to the Court of Appeal and appeal from there to the House of Lords. The entire judicial route is provided. As always, I understand the point made by the noble Earl, Lord Russell, but I suggest that it would be a misconception to consider that the form of judicial ouster in the Bill is unique.
The major difference between the Anisminit case, which is a pertinent case to which to refer, is that the Anisminit case stated that the decision of the Minister is final. There was no judicial review, or at least that was what was attempted in the clause. Here we do not seek to say that the decision of the Secretary of State is final. We say instead that a judicial process with a High Court judge and other specialists will review the decision of the Secretary of State, not that his decision would be final without judicial scrutiny. I shall give way to the noble Lord.
Lord Goodhart: I am grateful to the noble and learned Lord. Is not the flaw in his argument that of treating the SIAC procedure and judicial review as mutually exclusive? I know what has been said by my

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noble friend Lord Lester and I believe that he is most likely to be right in this; namely, that with judicial review, 99 times out of 100 the answer from the court will be, "We are not going to review your case because we think that the proper course is for you to go to SIAC". However, perhaps in only one out of 100 cases judicial review would have a role to play. What is the justification for excluding judicial review and for setting a precedent here, which is an extremely important feature, by going to the length of actually removing the right of judicial review in statute? Why not simply leave it in place?
Lord Goldsmith: I hope that the debates which have taken place on Second Reading and in Committee yesterday and this evening may have indicated that in what was quite an emotional argument about the absence of judicial review implying the absence of judicial scrutiny was in fact a misplaced concern. I do not seek to make a criticism because I entirely understand how it has come about. However, that is not the point, and the purpose of our debates is to try to clarify any misunderstandings and to recognise the real issues.
Lord Neill of Bladen: I should like to intervene on a minor point. The noble and learned Lord the Attorney-General is usually so accurate in all his statements that when he makes a not entirely accurate comment I venture to point it out. I think he said that there was a distinction between the Anisminit case and this one, in that it referred to the decision of a Minister not being called into question. On the contrary, it did not do so. It comprised exactly the same language as we have here. Rather, it was the decision of the Foreign Compensation Commission which could not be called into question. Thus it is an exact parallel to the position in the case before the Committee.
Lord Goldsmith: I am grateful to the noble Lord for reminding me of that point. Does the noble Earl wish to intervene?
The Earl of Onslow: I wished only to observe that when lawyers say that they are "grateful" for an intervention, basically what they mean is, "Oh bother, he has caught me out. I have fallen hook, line and sinker". That is what caused me to laugh.
Lord Goldsmith: When I wish to use such language, the noble Earl should not worry, it will be clear that that is what I am saying.
I am anxious that the debate should proceed on an entirely accurate basis and thus I am grateful for the noble Lord's clarification. I do not think that there was an appeal from the commission to the Court of Appeal. To that extent it is right that here there is a route from the commission to the Court of Appeal. In that we have a wonderful result for the lawyers; both of us are right to some extent—the noble Lord entirely and I at least in part.
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But the essential point is this. No one has yet pointed out, once one looks at what SIAC actually does, what it is that judicial review would add. I have not heard anybody suggest something that judicial review would actually add. SIAC will do all that judicial review would do, and more. I make that point to emphasise its ability to review facts in a way that judicial review does not.
Lord Marlesford: Surely what we are in a way talking about is the appearance of justice. There may be few cases in which this will apply, but people are somehow uneasy that the new procedures will exclude the traditional procedures which are seen as a safety net for justice.
Lord Goldsmith: I invite the Committee to look upon it as a specialist court. We have other kinds of specialist court which do a good and better job. This court was set up precisely because the judicial review procedure and, indeed, the habeas corpus procedure, did not provide an adequate safeguard in the Chahal case, so said the European Court of Human Rights and, indeed, the "three wise men" procedure that we had at that stage. The matter can go to the Court of Appeal; it can go to the House of Lords. That is the point.
I hope that the debate has demonstrated that there is not anything that judicial review would add and, instead, that judicial review would not be as good as this.
Lord Phillips of Sudbury: I thank the noble and learned Lord for giving way. It is not fair to say that the debate has demonstrated that there is no role for judicial review. All that the debate has demonstrated is that no one sitting here tonight can give a clear-cut case where it might be relevant. As my noble friend Lord Goodhart said, it would be a foolish person who said that in no circumstances could it be relevant.
If the Attorney-General is right, leaving the normal provisions and protections in the Bill will damage no one; it will cause no obstruction to the intent of the Government or to the Secretary of State in future times. But if it is the case that the occasion arises where judicial review becomes relevant, the traditional remedy is there.
The noble and learned Lord is in a logical impasse in arguing as he does that, "There is absolute certainty that judicial review is not necessary but we insist on retaining the clause in the Bill". If it is absolutely unnecessary, why do we need the clause?
Lord Goldsmith: I am talking about the reality of the situation. I hope that I have persuaded noble Lords of the merits of the SIAC procedure. I will never persuade the noble Earl, Lord Onslow, but that is a cross I shall have to bear.
I invite noble Lords to consider that judicial review will add nothing; no one has shown that it will add anything—except possibly this: it will give the ability

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for delay and expense, which will assist no one. That is all the debate, I respectfully suggest, now comes down to.
Lord Thomas of Gresford: Perhaps I may follow the noble Lord, Lord Marlesford, in what he said about the public perception of these proceedings. The writ of habeas corpus is a prerogative writ; that means that it is in the name of the Queen. That is why proceedings are called "Regina against the Secretary of State ex parte on the application of X". Judicial review is the same inheritor of the prerogative writs of mandamus and certiorari and so on.
Habeas corpus was first talked about in 1200. The other prerogative writs are of a similar age. It is where the Queen, on behalf of a person under her protection within her realm, calls to account a Minister or whoever, or a public authority, and, on the application of that person, makes them explain what they have done. Contrast that with what the Government are trying to do with this immigration procedure.
I do not think that the Government want to treat this as an immigration matter but they want to avoid having to call people to an ordinary court of law, where there would be a charge, a trial, a sentence. It is far easier to go along with the immigration procedure. After all, it does not affect the Brits or involve the terrorists in Northern Ireland; it affects foreigners who enter this country. We do not really want them, we cannot deport them, and so we are going to deal with them in a different way. "We are not going to call the Queen in", say the Government, "and use the traditional methods; we are going to go along to a procedure which was not intended or constructed to deal with the liberty of the subject but to deal with deportation orders". That is why SIAC came into being. It was not to protect the liberty of the subject or anything of that sort, but to check whether a deportation order made by the Minister was correct.
When one has judicial review or habeas corpus, it is essential that the person who makes the application in the name of the Crown knows everything upon which the Crown relies. In other words, all the information and argument that is placed before the court must be disclosed to the applicant. As we have discussed, it may be necessary in certain circumstances to have safeguards in place in the form of public interest immunity certificates. It is better occasionally, although not very often, to forgo the proceedings and to allow the applicant to have his way rather than to reveal secrets. That is a view taken by the Government. But within that procedure there are safeguards that we have grown up with. They are part of the fabric of this country. We know what it means. It is something that we have inherited.
Here, in the face of an emergency in America, we are adopting strange procedures. We are detaining without trial in a way that we never have done, at least not in recent times, even in the face of the most extreme outrages such as the Brighton bombing, the Canary Wharf bombing and all the others. We have never
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found it necessary to abandon the traditional safeguards: trial, the criminal courts or the use of prerogative writs.
What judicial review and habeas corpus add is legitimacy—history and legitimacy, the sort of things that we seek to defend in our constitution. If the Minister does not see that, I am sorry. What he is putting in their place is, in a sense, a low-grade procedure which has the unique quality that the liberty of the person concerned is to be taken away and that person will not know why. I find that completely unacceptable.
10.30 p.m.
Earl Russell: I know that the Minister had to listen to an enormous amount of material during this debate, but will he kindly correct one remark. He said that no one had made an argument for anything extra that judicial review might add. I did, in my Second Reading speech. The Minister may have thought that it was not—as 1066 And All That would put it—memorable, but I did set out such an argument. I shall not elaborate on the matter now because I am about to return to it in relation to the next amendment.
Baroness Buscombe: I shall be brief. I thank the noble and learned Lord the Attorney-General for what I felt was quite a positive response. I hope that the noble and learned Lord and other Ministers have noted the extraordinary restraint on the part of the Opposition Front Bench in the debates on judicial review. We have adopted that approach because, although we are unhappy at the exclusion of judicial review, we understand the need to try and assist whenever we can in relation to the speedy passage of the Bill. In that sense, we felt that the minimum we should ask for was the possibility to appeal on a point of law involving the procedures of SIAC and where it fails to follow its own procedures. We wait with somewhat baited breath in the hope that the noble and learned Lord the Attorney-General will dispel our lurking doubts on Report.
It has been difficult for us to continue to show such restraint. There is still time in the coming days, through the next two stages of the Bill's progress, to unleash some of that restraint. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 125 not moved.]
On Question, Whether Clause 30 shall stand part of the Bill?
Earl Russell: I apologise to the Minister if I have ignored other ouster cases. I remind him that I believe in the principles of natural justice. I therefore tabled a Question for Written Answer on 18th October asking what previous attempts had been made to restrict judicial review by statute and what had been the results of those attempts. I asked on Second Reading whether I could hope for an Answer before Committee. At

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three o'clock it had not yet arrived. If I miss out any precedent, as soon as I am informed of it I shall, of course, take account of it.
Lord Rooker: When the noble Earl gets his Answer, I hope that he will also get a written apology from one of the permanent secretaries. His Question has been batted around from one ministry to another. It arrived at my department on Tuesday—the day that he made his Second Reading speech. I apologise to him, because it will fall to me to answer him, but I shall see that he gets a proper apology from those who have batted his Question round. It is unacceptable that he has been held back by the delay in answering his Question. I have a draft response, which I am happy to give to him or to read out to him from the Dispatch Box.
Earl Russell: I should be most grateful if the Minister would do that. I think that it would be most helpful to the Committee.
Lord Rooker: I shall read out the Question and the Answer so that everything is on the record. The noble Earl asked the Government:
"What previous attempts had been made to restrict the right to judicial review by parliamentary statute and what had been the results of such attempts".
The draft Answer says:
"There are numerous examples of statutory provisions which prevent review by the courts to a greater or lesser extent and it is not possible to provide a comprehensive list. Such provisions vary enormously, depending on the context in which they appear. For example, a statute may provide that a certificate by a Secretary of State shall be conclusive evidence of the matters contained therein. Alternatively, it may provide that a particular decision shall be final or conclusive or that it shall not be questioned in any court. In many cases, an alternative review process is provided for. Many of the statutory provisions in question have not been tested in the courts. Some of those that have been tested have been held not to prevent review—sometimes a limited review—by the courts".
That is the end of the Answer.
Earl Russell: I am most grateful to the Minister. I thought that something like that had probably happened. As my late noble friend Lady Seear always used to say, it is not conspiracy, it is cock-up. That happens to all of us. I thank the Minister very warmly.
I noticed that his Answer was full of qualification. There were certain cases in which the courts had not been restrained by such provisions. Some of the examples were a good deal less far-reaching than the ones that we are considering here.
If I say that this is a grey area, I think that I am entitled to say that it is a very dark shade of grey. It is a doubtful constitutional area that brings some very wide questions into play. A lot of them extend a great deal wider than the Bill and are arguably more important than the whole of the Bill.
The defence of both Ministers has been throughout that SIAC is, in effect, a form of judicial review. In other words, no significant restriction is imposed. That is the maid's baby defence—it is a very little one.
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My noble friend Lady Williams said that when our liberties are restricted, that is done by gradual reduction. I think of a case involving King James XI and I, who wanted to control the General Assembly of the Church of Scotland. His first move was to request that a meeting scheduled for a particular day could, as a favour to him, be postponed from the morning to the afternoon because he wished to attend. The elders of the kirk instantly recognised that request as the thin end of the wedge but decided that, were they to oppose it, they would appear ridiculous. They were right. It was the thin end of a wedge that went right through to the piece of wood to which it was applied. I cannot help wondering whether the SIAC defence is another in that line.
A full judicial review enables the court to look at the whole case. The SIAC procedure directs people strictly to certification. The Bill directs the proceedings of the court through the wording of Clause 34(3):
"Where this section applies the Commission must begin its substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate".
That does not provide for any proper examination of the asylum claim or give the opportunity to consider the certificate in context.
On Second Reading, I raised the Nelson Mandela point that, depending on the situation, not all forms of terrorism are necessarily equally grave. The point made by the UNHCR is memorable, even if mine is not. It advances the major and material point that the exclusion of the asylum claim makes it impossible to consider the proportionality of the Secretary of State's certificate. If the claim is excluded, the judicial review is not sufficient and will not cover the whole case.
The number of Prime Ministers of newly independent Commonwealth countries since the war who have been in British prisons is high. How they related to this country when in power had a great deal to do—in some cases to my certain knowledge, in others in my belief—with how they had been treated by this country. One fine Sunday afternoon in August, my wife and I pretended to be tourists and went down the river to Greenwich. All the flags were flying at half mast, and we were told that that was being done for Mr. Jomo Kenyatta. Not all the people who have been regarded as terrorists necessarily need to be treated exactly the same way. Jomo Kenyatta's death was mourned in this country, by the white population of Kenya and by many people who would cheerfully have certificated him under the Bill. In future, are such people to be totally barred from free consideration in this country? Can we consider that question without proper judicial review?
More serious is that the proposed procedure makes a mess of the delicate web of authority woven between the executive, Parliament, the courts and the principles of natural justice—one of the few checks and balances in our constitution. That is far more far-reaching in its effect than anything that applies to the Bill. Because the common law is not entirely dependent on Parliament, we do not have an elective dictatorship. The common law rests on precedent. It does not owe its authority to Parliament. One can trace the common

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law back to 1189 and the limits of legal memory. In the 1960s, a case was decided on a charter of 1189, which was nearly a century before the beginnings of Parliament. So there are vires in the common law which do not originate from Parliament. That leaves one to reflect upon the question hinted at by Sir John Laws in his article in Public Law: what were the vires by which Parliament was first set up? The relationship between Parliament and the common law is an area which has not been thoroughly explored and which perhaps sometimes we may be prudent not to explore.
The principles of natural justice, or at least the few basic central principles of natural justice—to hear both sides and not to be judge and party in one's own court—go back beyond the limits of legal memory; that is, beyond the common law itself. So no lawyer can have an authoritative opinion on their origin. It is a long time ago, but the Government ought to know some of these things before legislating in an area which I do not believe they fully understand.
The question, "What is the comparative authority of the principles of natural justice and an Act of Parliament?", is not clear. I believe all of us in this Chamber agree that an Act of Parliament can do whatever it likes. But it remains for the courts to decide what an Act of Parliament has actually done.
The courts decided a long time ago that they were going to interpret Acts of Parliament according to the intention of the legislator. That goes right back to the days of Chief Justice Bearford, when judges actually helped to write the statute. He said in one memorable judgment, where it was being argued whether something was to be excluded because it was not in the statute, or included because it was implicit in the statute:
"He that drew the statute meant to put it in and only left it out through inadvertence. It shall therefore be construed to be in the statute".
In another case in a parallel jurisdiction in Bologna there was a law making it a capital offence to shed blood in the palazzo. One of the judges was being shaved in the palazzo, and the barber nicked him and shed blood. He brought a case against the barber under the statute. But his brethren, his fellow judges, said that that was not in the intention of the statute so the case was dismissed.
It is along those lines that judges continue to say that something is so unreasonable that Parliament cannot possibly have intended it. In fact, it is the duty of judges to interpret the intention of Parliament according to the principles of natural justice, because when they first began to interpret the intention of Parliament, there were absolutely no records, save the statute itself, on which they could do it. That remains the case.
The noble and learned Lord, Lord Woolf, in 1996, said that if Parliament intends to confer a power to act unfairly—that is, a power contrary to the principles of natural justice—it must say so in express words. That seems to me to be a phrase pregnant with endless possibilities, not all of which I would be happy to see us forced to explore.
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We should remember, to get this in perspective, that the first Acts of Parliament prohibiting murder were passed as recently as 1956. Indeed, I can remember making my maiden speech at the Oxford Union on it. So something absolutely central in our law rested on common law and on precedent long before there was any statute that could embody it.
There is here a web and a balance. We do not have many checks and balances here; we do not have a constitution; we do not have a recorded foundation; but we have a common law with which Parliament occasionally has to compete for authority. I understand that that is extremely inconvenient to Ministers; but that is precisely why it is so important.
Lord Neill of Bladen: In his review of the history of natural justice the noble Earl appears to have overlooked the 16th century case where natural justice was traced back to the Book of Genesis, because God, before expelling Adam and Eve from the Garden of Eden, gave them both an opportunity to respond to the charge; none was granted to the serpent.
Earl Russell: I thank the noble Lord. I was familiar with that case. However, since we are in an area where, after our debate on incitement to religious hatred last week we are facing a religiously plural society, I thought it best not to take up that line of argument because it led us into byways where I did not think we wanted to go.
Lord Goldsmith: I hesitate to intervene. I want to make three points, if I may, because I have said so much about this area. First, there are many other examples of judicial ouster. Dare I quote back to the noble Earl, Lord Russell, Article 9 of the Bill of Rights 1688? It provides for an ouster jurisdiction of the courts because nothing which is said in debates or proceedings in Parliament ought to be questioned in any court or place outside Parliament. That has been a successful judicial ouster.
There are other examples in statutes. We hate referred to Anisminit. In that case the House of Lords said that if it was not a decision it could review it. It was an ouster. Section 44(2) of the British Nationality Act 1981, RIPA, which has been referred to already, and the Terrorism Act are examples, and there are others. I suggest that there is not the constitutional problem which has been identified.
Secondly, on the idea of a judicial scrutiny by another route, I hope that the noble Lord, Lord Thomas of Gresford, will forgive me. I take exception to his expression of SIAC being a low-grade process. A process with a High Court judge and another judge as a security expert, if I may so put it, with an appeal to the Court of Appeal and the House of Lords is not a low-grade process. It is an important, robust judicial process
Thirdly, why do we say that that is more appropriate? It is more appropriate because it has the immigration experience, the security experience and can examine issues that the judicial review does not examine. For example, it has to look at the

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circumstances at the time that the matter comes before it. Judicial review is limited to reviewing a decision when it was made by the Minister. For that reason, it looks more at the substance than the judicial review would do.
Finally, I have touched previously on the point made by the noble Earl, Lord Russell. The SIAC procedure in this Bill deals with a certification. But the rest of the immigration decisions are themselves subject to the laid down procedures in relation to those decisions—an asylum application or a right to enter, for whatever reason it may be. That is reflected in the Bill. Clause 27(7) and (8) recognise that, because the key to this detention is an existing power under immigration law to detain, that may be the subject of an appeal; and if it is an appeal which is going to SIAC then Clause 27(8) provides that SIAC shall, so far as is reasonably practicable, deal with the two sets of proceedings together.
I stand unrepentantly on the proposition that there is not a practical effect given by judicial review that is not given by SIAC. Therefore, I hope that the clause will stand part.
Lord Thomas of Gresford: The noble and learned Lord the Attorney-General has taken exception to my description of the commission as low grade. That was perhaps excessive and I withdraw it.
I am sure he would agree that were it not for the clause that he seeks to put forward it would be an inferior tribunal which would be subject to certiorari through the High Court. That is the traditional role of certiorari: to govern inferior jurisdictions.
Lord Phillips of Sudbury: With regard to other ousters, the noble and learned Lord mentioned the British Nationality Act, RIPA, and the Bill of Rights 1688. None of those has an ouster in circumstances where the liberty of the subject is at stake in the way that it is here.
Lord Goldsmith: The Bill of Rights? The Terrorism Act? RIPA?
Lord Phillips of Sudbury: On the Bill of Rights, the ouster to which the noble and learned Lord referred was simply that Members of this House and another place could not be prosecuted for what is said within these walls. That is a very different kettle of fish.
Earl Russell: I hope that I may return to the Bill of Rights for a moment. First, I think that the Minister was not in this Chamber when we passed the Defamation Act 1996. I think when he recollects that he might realise that he has picked up a two-edged sword.
Lord Goldsmith: I should have thought that he would eventually, but that is a different issue.
Earl Russell: I think that all parties concerned in that picked up a two-edged sword. What the Bill of Rights
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created was a traditional mediaeval liberty—an area within which the officers of the law did not enter. It is a privilege which survived in Oxford and Cambridge colleges until quite recently. It is a very different principle indeed from the one invoked here. It is a principle of internal self-government. It is a local autonomy like the City of London. It is not an ouster of the jurisdiction of the courts which in any way is intended to diminish the liberty of the subject. I think any Member of Parliament will agree that parliamentary privilege, whatever it may have done nation-wide, has not diminished the liberty of Members of Parliament.
Clause 30 agreed to.
Clause 31 [Legal proceedings: derogation]:
Lord Goodhart Lord Goodhart moved Amendment No. 126:
Page 17, line 7, at end insert—
"( ) Section 6 of the Special Immigration Appeals Act 1997 (c. 68) shall apply to proceedings before the appropriate appeal court by virtue of subsection (3)(a) or (b) as it applies to proceedings before the Special Immigration Appeals Commission."
The noble Lord said: I hope that I can deal with this briefly. It is in the nature of a probing amendment. There is a problem when cases go from SIAC to the Court of Appeal on a point of law. As we all know, frequently points of law cannot be decided in the absence of the facts. For instance, the question whether there is any evidence to justify a particular finding of fact is in itself a point of law.
Therefore, there may well be the need when cases go to the Court of Appeal to deal with matters which have been dealt with in front of SIAC by the special representative. I wish to be satisfied that in that case there will be a mechanism by which the special representative will be entitled to appear in the Court of Appeal, and no doubt on the basis of rules made in the Court of Appeal, for a hearing in camera and in the absence of the appellant. But it is clearly necessary that his case may be put. That is the purpose of Amendment No. 126. Section 6, which enables rules to be made for a special representative's appearance, will apply in the Court of Appeal as well as in SIAC itself. I beg to move.
Lord Rooker: We believe that the amendment is totally unnecessary as the indications from the Court of Appeal are that it considers it has an inherent jurisdiction to involve the special advocate should it wish to do so. I shall try to speak as briefly as the noble Lord, Lord Goodhart.
In the case of Rehman, the Court of Appeal said that it considered it would have the inherent jurisdiction to call the special advocate involved in the SIAC case if that would help the court deal with the proceedings before it. That being so, making provision in primary legislation on this point does not seem necessary. But more than that, it could actually be unhelpful. There are now a number of bodies which have the special advocate procedure and from which appeals lie to the Court of Appeal. The Prescribed Organisations Appeals Commission is one such body. If we legislated in respect of one of these bodies only—in this case

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SIAC—that would call into question what the Court of Appeal (or its equivalent bodies in Scotland and Northern Ireland) might be able to do in respect of other bodies with a special advocate procedure.
Although we accept that the special advocate may on occasions be able to assist the course of justice by appearing before the Court of Appeal—or before the House of Lords—we do not think that the amendment is necessary or desirable.
Lord Goodhart: I am grateful to the Minister. I still have some doubts about that because, as I understand it, there is no decision by which the Court of Appeal has allowed a special advocate to appear in front of it. It has merely expressed the view—it is an obiter view—that it might have or would have the jurisdiction to do so if it so wished. I should prefer to see this matter on the face of the Bill in order to put it beyond any doubt. It is clearly important that such a jurisdiction should exist. We do not want to be faced with a situation in which we must pass rapidly an emergency Bill in order to ensure that the special advocate has such a right to
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appeal, if called upon to do so. However, this is not a matter which I consider appropriate to take any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 agreed to.
Clauses 32 and 33 agreed to.
Clause 34 [Certificate that Convention does not apply]:
[Amendment No. 126A not moved.]
Clause 34 agreed to.
Clauses 35 and 36 agreed to.
Lord McIntosh of Haringey: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Human Reproductive Cloning Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at two minutes past eleven o'clock.