HL Deb 29 November 2001 vol 629 cc458-522

3.32 p.m.

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 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 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.

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 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 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 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 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 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 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.

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


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 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 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 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 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 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 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.

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 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 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" 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 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 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 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 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.

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 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
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.
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.
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.
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 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 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.

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, 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 Russell

moved, 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 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.

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". 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 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 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. 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.

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 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 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—

  1. (a) making submissions to the Commission in any proceedings from which the appellant and his representative are excluded;
  2. (b) cross-examining witnesses at any such proceedings;
  3. (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 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 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 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.

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 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 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 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 moved Amendment No. 112: Page 11, line 24, leave out from "terrorist" to end of line 29 and insert "if—

  1. (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
  2. (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.

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 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 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 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 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. 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


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 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 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 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 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 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—

  1. (a) it considers there are insufficient grounds for a belief of the kind referred to in section 21(1)(a) or (b);
  2. 515
  3. (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;
  4. (c) it considers that for some other reason the certificate should not have been issued; or
  5. (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)". 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.

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 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 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 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.

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 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.