HL Deb 29 November 2001 vol 629 cc539-72

8.57 p.m.

House again in Committee on Clause 25.

Earl Russell moved Amendment No. 114E: Page 13, line 13, after "commenced" insert "without leave The noble Earl said: At least this is a simple and straightforward amendment. It addresses the clause in the Bill which requires that an appeal against certification must not be commenced after a period of three months from the date the certificate is issued. The amendment seeks to add to that the proviso, "without leave", thus allowing SIAC a discretion to accept a late appeal if it saw fit.

A great many reasons can put forward as to why an appeal may be delayed which may not be the fault of the applicant. For example, those who have been the victims of torture often find it extremely difficult to tell a coherent story for some time afterwards. I believe that there is no reason at all why being a terrorist and being a victim of torture should be incompatible. Indeed, if one happens to come from Iraq, the conjunction is quite probable.

People who have been the victims of rape again find it difficult to tell their story for some time afterwards. Once more, I see no reason why women terrorists—it is a part of the downside of equality that one cannot assume that terrorists are male—should be any more immune from rape than others.

Many appeals are delayed because of the incompetence of the legal advice available to those concerned. If one deals with claims for asylum, one comes across such cases all the time. In some cases, the inability to appeal after a fixed period may cause real injustice. It could save the Government a good deal of trouble and save Ministers a good deal of correspondence if SIAC were to be allowed what I believe would prove to be an extremely helpful safety valve. I beg to move.

Lord Goldsmith

Perhaps I may put this into context. First, we are concerned here with the case of persons who have been detained. In those circumstances, three months would appear at first glance to be a more than ample period in which to launch an appeal. They would be visited by representatives. No physical barrier would be put in the way of lodging an appeal. Furthermore, it is worth recording that an appeal against certification is not the only remedy available. It is worth noting—this has not been referred to so far in the debate—that, as the basis for the decision is an immigration decision to refuse leave to enter, or whatever else it may be, and as that decision is a necessary pre-condition for the certification giving effect to the detention, there is an appellate procedure in relation to that aspect in any event. There is also the possibility at the end of six months of applying for a review of certification.

In those circumstances, I suggest that three months for the appeal is an adequate time. The likelihood is that an appeal will be put in much earlier. I invite the noble Earl to consider what I have said. What he has said must also be considered, but I hope that he will not press the amendment.

9 p.m.

Earl Russell

I thank the noble and learned Lord for that reply. I made no objection to three months as a general target. It seems perfectly reasonable as a general rule. My argument was not for changing the general rule but for allowing a degree of discretion. While clearly it makes a significant difference that other routes are available, nevertheless there will be some cases for which this appeal is by far the most appropriate route.

Some of the people concerned are likely to be genuine asylum seekers. One makes no presumption as to what the proportion may be, but the chance that some of them will be is quite considerable. Among that group of people, this type of delay in putting in an appeal is quite common. It can also happen because of ordinary physical illness, which can sometimes keep people in a state where they are unfit to put in an appeal for a considerable length of time.

I cannot see that it would do SIAC any harm to allow itself this discretion. After all, it would not have to exercise it unless it saw a good reason for doing so. However, I do not see any need to take the matter further tonight. I shall ponder the matter between now and the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 [Certification: review]:

[Amendment No. 115 not moved.]

Lord Dholakia moved Amendment No. 116: Page 13, line 18, leave out from "25," to "months" in line 19 and insert "within three The noble Lord said: In moving Amendment No. 116, I shall speak also to Amendments Nos. 117 and 118, with which it is grouped. The amendments seek to safeguard interests. The longer the detention, the more it is important that the review takes place as soon as possible. We are therefore suggesting—in all three amendments—that the review should be within a period of three months. I beg to move.

Lord Rooker

I hope that the announcement I made earlier will meet the noble Lord's desires. I indicated that after the first six months we will go to a three month review. We shall be bringing forward amendments at Report stage to that effect.

Lord Dholakia

I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 117 to 119 not moved.]

Clause 26 agreed to.

Clause 27 [Appeal and review: supplementary]:

Lord Goodhart moved Amendment No. 120: Page 14, line 11, at end insert— ( ) The Commission shall give reasons in writing for a decision on an appeal or review to which subsection (1) applies. ( ) Rules under section 5 of the Special Immigration Appeals Commission Act 1997 (c. 68) (general procedure) may provide for all or part of the reasons to be withheld from disclosure to persons other than a person appointed under section 6 of that to represent the interests of the appellant or of the person who is the subject of the review. The noble Lord said: To some extent, this is a probing amendment which seeks to ensure that the commission is required to give its reasons for a decision in a form which will make it possible for the Court of Appeal to review them in the exercise of a right of appeal on a point of law.

The commission's reasons must be disclosed. We hope that the special representative appointed under the 1997 Act will be given powers to appear in the Court of Appeal, if necessary. Where, for security reasons, it is not practicable to disclose to the detainee the full reasons why an appeal has been dismissed, at least those reasons can be seen by the special representative, who will be able to make use of them in an appeal to the Court of Appeal. I beg to move.

Baroness Buscombe

I should also like to speak to this group of amendments, in particular Amendment No. 123.

Lord Goldsmith

We are dealing with Amendment No. 120.

Baroness Buscombe

I am sorry.

Lord Goldsmith

The Special Immigration Appeals Commission procedure rules, to which I referred in a previous debate, provide under rule 23 that the commission must record its determination and, to the extent that it is possible to do so without disclosing information contrary to public interests, the reasons for it. That would apply to the determination by SIAC under this procedure because the rules are incorporated under Clause 27(6) of the Bill.

In those circumstances, the noble Lord may feel, perhaps, that his concern—which I entirely understand—is sufficiently met. If there is an aspect of his concern which is not met by the incorporation of those rules, I shall be happy to look at the matter further.

Lord Goodhart

My concerns are not entirely met. The problem is that the present rules allow the commission not to disclose its reasons in full because of security reasons. It would be better if the commission were required to disclose its reasons in full, because without that the Court of Appeal may not properly be able to exercise its powers of reviewing on a point of law. The security interest should be protected by allowing the reasons, or part of the reasons, to be withheld from the detainee and shown only to the special representative. The special representative can then conduct the appeal—which would no doubt be heard in camera in the Court of Appeal—and would have full access to the whole of the reasons of the commission.

Lord Goldsmith

I am grateful to the noble Lord for clarifying that point. As I have indicated, I am happy to consider it further but I am not in a position to say any more at this stage. I hope that that is of some help to the noble Lord.

Lord Goodhart

I think that we have taken this matter as far as we can go. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Hooper)

I should tell the Committee that if Amendment No. 121 is agreed to, Amendment No. 122 will be pre-empted.

Lord Thomas of Gresford moved Amendment No. 121: Page 14, line 37, leave out from "certificate" to end of line 38 and insert— (a) on grounds of change of circumstances, or (b) where the initial certificate was cancelled because of a technical irregularity. The noble Lord said: This amendment relates to subsection (9) of Clause 27: Cancellation by the Commission of a certificate issued under section 21 shall not prevent the Secretary of state from issuing another certificate, whether on the grounds of a change of circumstance or otherwise". Amendment No. 122 seeks to leave out "or otherwise". It is the very least that can be done. The phrase is very wide. It could mean that the commission might come to a particular conclusion and the next day for any reason the Secretary of State could issue another certificate within the framework of his responsibilities.

Amendment No. 121 attempts to make some sense out of the subsection. It proposes that the Secretary of State should be entitled to issue another certificate, on grounds of change of circumstances, or … where the initial certificate was cancelled because of a technical irregularity". Where the commission simply disagrees with the exercise by the Secretary of State of his power to issue a certificate, it seems to us that the issuing of another certificate immediately, on any grounds at all, is inappropriate. I beg to move.

Baroness Buscombe

I support Amendments Nos. 121 and 122.

I want also to speak briefly to Amendment No. 123. We agree with the overall gist of the amendment; namely, that the subsection is too broadly drawn. We believe that the circumstances in which a fresh certificate can be issued must be narrowly defined.

In the event of a certificate being cancelled it should not be reissued without very good reason; and it should not be reissued without the support of fresh evidence which was not, for whatever reason, available when the original certificate was issued. I commend Amendment No. 123 to the Committee.

Lord Rooker

These three amendments deal with a matter that was raised by the Joint Committee on Human Rights. We fully understand the wish of Members of the Committee to ensure that the Bill does not give the Secretary of State arbitrary power to reissue a Clause 21 certificate in defiance of a decision by SIAC to cancel the first certificate. We have given careful thought to whether we can find an alternative formulation to the one in Clause 27(9). We have riot been able to find one.

There is a variety of circumstances in which it may be appropriate for the Secretary of State to make a fresh certificate after SIAC has cancelled the original. Perhaps I may give a few examples which I hope will help the Committee in case the matter receives further consideration.

First, if there is a change in circumstances and matters have moved on from the time when the original certificate was made, there may be new reasons for considering that a person now qualifies as a suspected international terrorist, notwithstanding SIAC's decision.

Secondly, the same basic case against an individual may exist, but new evidence may come to light which substantiates a previous suspicion or belief. For example, there may have been a belief that a person was a member of a proscribed organisation but SIAC may have concluded that there were no reasonable grounds for that belief. New information may subsequently emerge which strongly supports the original contention, and that may justify a fresh certificate.

Thirdly, there are technical matters where the certificate was cancelled for procedural shortcomings. Fourthly, a higher court might reverse a decision of SIAC, which would mean a fresh certificate being issued unless that higher court resurrected the certificate itself.

None of the amendments would catch all those possible scenarios. One solution might be to adopt an amendment that covered all of them, but if we try to create an exhaustive list there is always a risk that something will be overlooked. That is why we do not favour that approach.

Another way would be to delete subsection (9) and argue that the Secretary of State would be able to issue a fresh certificate in appropriate cases without the need for express provision. However, that also carries risks. There are examples in other Acts of Parliament in which mention is made that certain actions do not prejudice the future use of the same power. Paragraph 21 of Schedule 2 to the Immigration Act 1971 relating to detention is one such instance. If the Bill is silent on the matter, it is not certain what the consequences would be. That is why we prefer to have the provision in the Bill.

I confirm that our intention is that the Secretary of State will issue a fresh certificate only if it is justified. We rely heavily on SIAC, which would rightly take a dim view of any Secretary of State who seemed to be ignoring its decisions. I am sure that it would cancel any inappropriately made future certificates in short order. Furthermore, it might well be a breach of Article 5(4) of the European Convention on Human Rights, and perhaps also of Articles 6 and 13, for a Secretary of State to adopt such a course.

I fully appreciate that the matter was considered by the Human Rights Committee. We have genuinely looked to see whether we can meet the concerns raised, but for the reasons that I have given I hope that the noble Lord and the noble Baroness will be satisfied that we are acting honourably and will not press their amendments.

9.15 p.m.

The Earl of Onslow

This sounds terribly like double jeopardy. There is somebody whom we do not quite have enough evidence to lock up, but we think that we ought to lock him up anyway. Along comes SIAC and says that we should let him go. The Minister then says that he has a little more evidence, so the Government lock the man up anyway. That is exactly what is described and it sounds to me like double jeopardy. I thought that once a man had been acquitted it did not matter what he did—he should be acquitted and that was that. The more that one hears of the Bill, the more dangerously it goes to the heart of our liberties. I know that we are talking about only 10 or so people and about a horrendous amount of damage done by terrorism, but we must be very careful about our ancient liberties because they are more important than anything else. That was double jeopardy.

Lord McNally

The Minister has conceded that the paragraph is very wide, but he pleads with us to believe his honourable intentions. Nobody doubts his honourable intentions, but there is the opening for a cat and mouse act here. The Minister has previously put a lot of emphasis on the responsible role that SIAC is going to play, yet the Bill leaves a blank cheque for the Home Secretary of the day to defy or ignore SIAC.

Amendment No. 121 may not be absolutely right or drawn widely enough, but it at least goes in the right direction. Perhaps on Report we could secure an amendment that would allow the Home Secretary to take on proper changes in circumstances but gave him something less than a blank cheque.

The Lord Bishop of Portsmouth

I hope that the Government take on board what the noble Earl, Lord Onslow, and the noble Lord, Lord McNally, have just said and think again.

Lord Rooker

I do not accept the description of the noble Earl, Lord Onslow, although I understand his concern. We share that concern in a way. We have spent some time looking at the issue, particularly in view of the comments of the Human Rights Committee. We are conscious of the efforts that have gone into that Joint Committee of both Houses and we take it very seriously.

As I have said already, without any commitment, we are continually looking at the Bill during its passage—at the issues that we have already dealt with and at the issues that are still to come before the Committee. We are constantly reviewing our decisions. We have had a look at the issue already, but we shall not stop doing so. If we can find a way to meet the desires of the Select Committee, we shall certainly do so. We have not stopped working on the clause. For tonight, I ask the noble Lord to withdraw the amendment but I assure him that we shall continue looking at the issue.

Lord Thomas of Gresford

There are none of the Minister's examples that could not have been encompassed in the words set out in Amendment No. 121, because a "change of circumstances" means exactly that. Fresh evidence would be a change of circumstance. Amendment No. 121 does not ask for too much. I welcome the Minister's assurance, but we shall certainly return to this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 122 and 123 not moved.]

On Question, Whether Clause 27 shall stand part of the Bill?

Lord Campbell-Savours

Over the past three days, I and many other Members of the Committee have spent about 16 hours listening to debates and wanting to intervene. I have sought not to do so except on this narrow issue.

From those debates and comments outside, it seems that SIAC's integrity is most important to the Bill's implementation. I tried to find out about SIAC's operations since it was established in 1997. Little material is available in the public domain, apart from the Report of the Review of Tribunals by Sir Andrew Leggatt which deals with a number of aspects of SIAC's operation and how the tribunal's practices and procedures have been reviewed for conformity with the European Convention on Human Rights and to meet any particular concerns. The report says that the commission was set up in response to criticism of the Government by the ECHR.

Debates in this House and more widely have included discussion of whether there is some deficiency in the procedures, particularly in respect of the special advocate. A person making appeal may not feel that their case is being adequately heard. On 29th July 1998 the Lord Chancellor stated: The special advocate will see all of the Secretary of State's material. He will be able to test it; for example, by cross-examining witnesses. He will be able to make representations to the commission; for example, about the material to be withheld from the appellant. He will not, however, be able to communicate with the appellant as a representative normally would". That is obviously the basis of the concern that has been expressed. The Lord Chancellor continued: There is a risk of inadvertent disclosure through an apparent innocent remark". That is the explanation given by the Lord Chancellor. He went on: He will be able to apply to the Commission to seek specific information from the appellant".—[Official Report, 29/7/1998; col. 1588.] It is difficult to understand why, inadvertent disclosure through an apparent innocent remark", could be deemed sufficient justification. Section 6 of the Special Immigration Appeals Commission Act 1997, which established the SIAC explains the basis on which such persons are appointed. They are supposed to be trusted by the state and the Government are meant to have confidence in their reliability. I presume that these are people who understand exactly what sort of information they are not allowed to reveal under official secrets legislation. Surely they are capable of having a conversation with an appellant without—again quoting the Lord Chancellor—disclosing information through an apparently innocent remark.

I felt there might be room for compromise on that principle. Surely there are lawyers who are capable of having direct contact with the people they are representing for the purposes of the tribunal.

I move on to what the Lord Chancellor said at col. 1589: We have imposed on the Secretary of State the requirement to notify the Attorney-General of the potential need for the appointment of a special advocate at the time he decides to oppose the appeal. In that way, the special advocate will have the maximum time possible to communicate freely with the appellant. Once he has received the Secretary of State's material, the special advocate's access to the appellant will be restricted, but he will be able to apply to the commission for authority to seek information, in connection with the proceedings, from the appellant or his representative". We come back to the same point. Why should contact be restricted? If that person can be trusted not to reveal information which is sensitive to national security, why should not that lawyer have full access to the appellant in that particular case?

Finally, we have been told—indeed I read in a number of documents and the secretary of the commissioner said—that information relating to membership of the commission is confidential. In reality the chairman of the commission is known; it is in Whitaker's Almanack. Indeed, I think it was referred to earlier in today's debate. Therefore, in so far as the name of the chairman of the commission is made public, is there some other reason—apart from the case of a person who has knowledge of security matters—why the name of the person from the immigration appellate body should not also be made public?

Lord Thom as of Gresford

I support the noble Lord's criticism of SIAC. He puts his finger on a very important point.

When the special advocate appears before the commission, he will be given access to all the material that the commission will see. The secret material will, I imagine from my own experience, consist of telephone intercepts, surveillance records and so forth; and possibly informers, though I would be surprised if the names of the informants are revealed to anybody. That is the sort of information that is held close to the chest.

The submissions that will be made to the commission will be, on the one hand, from the advocate on behalf of the Home Secretary, saying, "Look at all this. He did this. He did that. He did something else. And because he did those things we have a suspicion that he is a terrorist". The special advocate will be in the unique situation of being unable to go to his client and say, "Look, it is said that you were in such-and-such a place on this day; that you were talking to a well-known terrorist; that you received a letter from somewhere else". He will not be allowed to ask the client where he was, so the client could say, "No, that is wrong. I was somewhere else. They have got the wrong person".

There are no proceedings before a court of law in this country where the advocate cannot represent his client by taking instructions from him. It is the basic principle of audi alteram partem; how on earth can the tribunal hear the other side of the coin if the person concerned does not know what the case is against him?

Since the 17th century the courts of this country have protected the identity of informers, long before the telephone or cameras were invented. That was something that was traditionally secure: never reveal the identity of informants. The courts have dealt with that for centuries. The courts have dealt with telephone intercepts, surveillance and matters which might reveal the methods of the security services. That is what they are concerned about. They have dealt with that in trial after trial. Noble Lords who heard the speech of the noble Baroness, Lady Kennedy, were listening to perhaps this country's most experienced advocate in terrorist trials. I cannot think of anyone who has had more experience in this area. She will have been dealing with such matters all the time. She comes to a firm view. My experience of terrorist trials is less although I have some, and I have a clear view as to how the identities of informers and the methods of the security services can be and are protected.

We have here a system which the noble and learned Lord the Attorney-General said recently was better than judicial review. That is nonsense, but we reserve that for later. I am amazed that the Government claim that a system whereby the advocate cannot take instructions from his client to controvert the facts and prepare his argument is better than the present system.

9.30 p.m.

The Earl of Onslow

It is ironic. I hope that I am right on this. If the man is charged and there is enough evidence against him for the Crown Prosecution Service to think that it can lock him up, he has the right to see the evidence. He has the right to instruct an advocate. However, if the Crown or the Home Secretary does not have enough evidence to lock hint up, he does not have the right to see the evidence. That strikes me as being very odd.

Lord Goldsmith

I am happy to deal with this point under debate on whether Clause 27 shall stand part I am not convinced that it is the most logical place, but I do not want in any way to avoid the issues.

I go back to what has been said. There will be sensitive intelligent information in certain cases which could not be revealed without compromising sources or prejudicing the security of other people. It is not difficult for any noble Lord to consider circumstances in which, if a hidden source—for example, someone inside a group, under cover—were to reveal that this happened on this particular day or that that conversation was heard on that particular day, it would put the life of that source at risk and prevent that source continuing with other work.

The hard choice is that that is not material which can be put before a court. At Second Reading I made the point that in circumstances where the court decides to use the PII system, it is saying that certain information that the prosecutor does not want to rely upon need not be disclosed because there is a general rule that unused material—even if the prosecutor does not want to rely on it—may be put forward. The noble Lord's example of the position of viewpoint of an observer is exactly such a case. It may not matter where the viewpoint was. The judge may say, "It is not relevant to this case. You don't have to reveal that because if you do so I recognise that you will be compromising a source: where this observer is being seen from". As the noble Lord, Lord Thomas, said recently, the court looks at the information, decides that it does not need to be disclosed and does not rely on it. The court cannot rely on it.

We are faced with this situation. Sensitive intelligence information shows that there is a person who, it is reasonable to believe, is a risk to national security. Because we cannot reveal that information without prejudicing source or national security, are we simply to say that we must do nothing about it? In the Chahal case the European Court of Human Rights said that it recognised that the use of confidential information might be unavoidable where national security was at stake. The question is: how do you use that material? How do you allow SIAC to review it? I refer to the special advocate procedure which the European Court commended in Chahal.

With respect to the noble Lord, Lord Thomas, he does not represent accurately what the special advocate procedure is. First, the special advocate—this is rule seven of the rules—has a function to represent the interests of the applicant. That means making submissions, cross-examining witnesses and making submissions to the commission. Before any of the sensitive information has been received, he is at full liberty to communicate with the applicant, to talk to him and to get any information he wants from him. After he has received the sensitive information, he needs to apply to the commission if he wants to talk further with the appellant. Rule 7(7) states that the special advocate may communicate with the appellant and his representative. At any time after the Secretary of State has made the material available under Rule 10(3), the special advocate may seek directions from the commission authorising him to seek information in connection with the proceedings from the appellant or his representative. So in those circumstances the commission can control—

Lord Campbell-Savours

May I—?

Lord Goldsmith

Will the noble Lord allow me to finish the point and then I shall gladly give way? In those circumstances the commission can control whether there is or is not a security issue about saying to someone, "I want to know where you were on 14th June because that is what it is all about". The casual comment, "14th June", might—but the special advocate may not know it—bring home to the appellant the fact that he knows where he was on 14th June, that he spoke only to a certain person and that that person is, therefore, an informer.

Lord Campbell-Savours

All the papers will have been seen by the three members and also by the special advocate. Therefore, the special advocate will have no knowledge more or less than the other three persons. Therefore, why is he not capable of making that judgment independently of them? Why must they say, "You cannot do this; you cannot raise that; you cannot refer to that date and you cannot talk about that conversation?" If he or she knows the gravity of the case as well as the three people sitting in adjudication, why cannot he make that decision himself?

Lord Goldsmith

I suggest that the answer is that the procedure allows for a reasoned discussion in which the Secretary of State's representative can no doubt point out why there is a particular difficulty about asking about the 14th June. The commission can then make a reasoned decision in relation to that.

The Earl of Onslow

Can we go back to this mythical 14th June? If the man is criminally accused in a court, the 14th June will be made public. Therefore, the risk to security, if he is one, is the same as it would be if the man then pleaded not guilty. I cannot see why you can say it when the chap is being charged but not when he is being locked up by administrative order.

Lord Goldsmith

Perhaps I may help the noble Earl. It may not be apparent to him that there are criminal prosecutions which do not take place because they cannot take place without revealing sensitive intelligence information and compromising it. In those circumstances it is not that the material is somehow put before the court in some way that the applicant does not see it; that information cannot be used. In those circumstances the prosecution cannot take place. That happens, as the Committee will know. The noble Lord, Lord Thomas, will know well that one of the reasons that in a number of cases certain defendants will consistently ask for disclosure of information about informers or about sources is because they hope that, if the prosecution is obliged to reveal the source or the information, it will not be prepared to do that as it would compromise the source and put people's lives at risk and the prosecution cannot take place.

We are dealing with a different situation where there is a reasonable belief that someone is a national security risk—someone who has no right to be here and for whom there is a right to deport but we cannot deport because we are concerned about his or her human rights. That is one point and one point only. In the circumstances mentioned by the noble and learned Lord, Lord Mayhew, do we let those people roam free or do we find a way of allowing the decision to be reviewed judicially by a committee which includes a High Court judge, another judge and another member in a manner that allows a good working arrangement so that the matter can be dealt with? I hope that I have said enough.

Lord Thomas of Gresford

Has the noble and learned Lord ever cross-examined a witness in a case involving the liberty of the subject without any instructions from his client? Has that ever happened? Can he envisage it? If he has been in such a situation, how effective was it?

Lord Goldsmith

There appears to be a view that SIAC is not dealing with these cases. The reason for setting up SIAC was, following the Chahal case, to deal with cases where the Secretary of State had formed a view that it was not conducive to the public interest that someone should stay here but, rather, that that person should be deported. Such a view would be based on intelligence information. That is why SIAC was set up.

The circumstances that I have set out are not different from those proposed under the Bill. I have the testimonial of the noble Lord, Lord Lester of Herne Hill, that it is a fair compromise between the national security issue and the protection of individual liberties. It must be ensured as far as possible that the appellant knows the nature of the case against him. Where that is not possible, it must be ensured that an experienced, independent advocate is available to put it forward, and the matters must be represented and cross-examined.

Lord Campbell-Savours

I am sorry to press my noble and learned friend on this matter. But perhaps I may quote again what the Lord Chancellor said on 29th July 1998. He said: The special advocate will see all of the Secretary of State's material".—[Official Report, 29/7/98; col. 1588.] That is, everything; all the material which is highly sensitive and highly secret. If the special advocate is capable of absorbing that material and not breaching security, why does he not have the right to speak directly to the appellant after the Secretary of State has submitted the case to the tribunal?

Lord Goldsmith

If the commission so agrees, then he can speak to the appellant and seek particular information.

Lord Campbell-Savours

Particular? Why does it have to be under those controlled conditions? That is what I am driving at. Why does he not have a general right of access so long as he does not breach matters of national security?

Lord Goldsmith

It is to ensure that inadvertently sources do not lose their lives and to ensure that national security is not compromised because a person does not appreciate the particular circumstances. If there is no risk of that happening, the commission will say that there is not a problem in his asking where someone was on 14th June.

I cannot improve on that. It is a system which enables the interests of the applicant to be safeguarded. It works already. It worked in the Rehman case. In effect, the individual was represented by a special advocate who did such a good job that he persuaded SIAC to overturn the decision of the Secretary of State. This is no impotent procedure. It is a robust protection for the appellant, consistent with protecting national interests. Therefore, I ask that Clause 27 stand part.

Lord Phillips of Sudbury

Before the Minister sits down, I understand the intense difficulties of the dilemmas that are being dealt with. If the Attorney-General were the special advocate, and knowing that the procedure allows the special advocate to go back to his client only having seen the evidence with the consent of SIAC, would he not then consider it to be his duty to obtain from his client, before he sees the evidence, an extremely long, detailed deposition of facts relating to all the possible contingencies which might give rise to the order being sought? Will the Attorney-General at least assure us that the procedures will permit that? One could be talking about four of five days' work to get a single statement from the person whose liberty is at stake.

9.45 p.m.

Lord Goldsmith

I absolutely assure the noble Lord that before the material has been seen by the special advocate, he can spend as much time as he wishes with the appellant and take as much detailed information as he wishes. The commission holds the balance. I said in an earlier debate—I shall not return to this in detail—that the Secretary of State can be ordered to provide information to the applicant. The commission can hold the balance as to what the special advocate can reveal to the applicant or the questions that he can put. That is a level playing field and a fair balance between the two sets of interests.

Clause 27 agreed to.

Clause 28 agreed to.

Clause 29 [Duration of sections 21 to 23]:

Lord Goodhart moved Amendment No. 123A: Page 15, line 14, leave out "subject to the following provisions of this section The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 123B, 123C and 123D.

This is an important group of amendments. Without going into any detail, at Second Reading speaker after speaker condemned the Bill on the grounds that it was far too big, that it contained far too much material that was not directly—or even seriously indirectly—connected with terrorism and that it was being rushed through in a way that did not give time for proper consideration. I believe that all of those condemnations are true.

For that reason, my honourable friends in another place joined the Conservatives in another place and put forward a detailed proposal that would establish a sunset clause to cover all of the Bill except for Part 12, which is about overseas bribery. That was debated at the beginning of the Committee stage. The proposal was that the Bill should be reconsidered, by virtue of a sunset clause, within a time that varied according to the contentiousness of the part that was being considered. It was proposed that the sunset clause relating to Part 4 should come into operation 12 months after the Bill was passed; that the sunset clause relating to Parts 3, 5, 10, 11 and 13 should come into operation after two years; and that the sunset clause relating to all other parts of the Bill, with the exception of bits of Part 12, should come into operation after five years.

That proposal involved a real sunset clause, not simply a renewal of the Bill by means of a statutory instrument. It meant that the Bill would cease to have effect permanently unless, within the time specified in each of those cases, new primary legislation was passed to ensure that the Bill was dealt with—that the relevant part of the Bill was either dropped or dealt with again through the full parliamentary procedure.

We on these Benches believe that if the Bill is to go through in anything like its current form, it is essential that it should, at the appropriate time, receive the full consideration and involve the proper timescale that it currently lacks.

I shall obviously not go into any details. Unfortunately—because of the extreme speed with which the Bill was brought before your Lordships' House—we failed to table the necessary amendments to introduce a sunset clause for Parts 1, 2, 3 and 5, which were debated yesterday. Although they do not now appear in the current Marshalled List, we have put down sunset-clause amendments that can be debated on Monday and Tuesday. They will cover Parts 6, 7, 8, 9, 10, 11 and 13.

In response to the debate in the House of Commons, the Government agreed to introduce one sunset clause and only one, in relation to Part 4. That appears in Clause 29 and provides for the initial effect of Part 4 to continue for 15 months. Thereafter it will be possible to renew that provision by statutory instrument for successive periods of not more than a year. At the end of five years a proper sunset clause will come into operation and if Part 4 is to continue, it will have to undergo the full parliamentary process before then.

We recognise and welcome that as a step in the right direction. However, it is only a step and in our view the step is not big enough. We believe that Clause 4 requires consideration much sooner. It introduces the wholly exceptional power to detain people without charge and without trial for an uncertain period of time because it depends on circumstances, in particular the willingness of a third country to accept the detainee who is outside the control of the Government.

We consider that it is quite inappropriate to say that this matter cannot be reconsidered fully through the proper parliamentary procedure until five years have elapsed. We believe that this procedure should be looked at as soon as possible so that we can consider, on a slightly more relaxed occasion, whether a remedy as draconian as this is still required in the light of the terrorist threat as it may appear in due course.

This is a matter of such importance that we believe that it should be brought back 12 months from the time when this Bill is passed. That would mean that the Government would have to reintroduce legislation after the Summer Recess next year. It would be possible to deal with it, with full, proper and due consideration, more quickly than the present Bill because there would be only one part to deal with. If, in a year's time, the terrorist threat still requires such a remedy, it will be possible, according to our proposal, to consider the matter before time expires some time in the middle of December next year.

On Monday, when we consider other sunset clauses, we shall not return to this matter. At the moment we are considering the sunset clause on Part 4 only, but we firmly believe that we should return to the matter as soon as possible and, in our view, "as soon as possible" means within the next 12 months. That is twice the length of time that my noble friend Lord Jenkins of Hillhead told us at Second Reading that he allowed for the Prevention of Terrorism Act for which he was responsible in 1974. We believe a year is enough time for such legislation and that we should reconsider Part 4 in a year's time. I beg to move.

Baroness Buscombe

Perhaps I may say, on behalf of Her Majesty's Opposition, that we have great sympathy with the amendment moved by the noble Lord, Lord Goodhart. We have tabled a sunset clause amendment for what I hope will be a full debate on either Monday or, more likely, Tuesday of next week. We shall reserve our right to debate it then.

Lord Rooker

I have listened to the noble Lord, Lord Goodhart. With the best will in the world, it took a while for him to mention the fact that the sunset clause had been inserted. I took with a pinch of salt the comments of the noble Lord, Lord Jenkins, the other day. He claimed that the Bill had arrived unamended from the other place, ignoring the fact that the sunset clause had been inserted. That was a major change. I suspect that if we had inserted a one-year sunset clause, noble Lords would have said, "You have to do it every six months".

We have derogated from the European Convention on Human Rights, a convention to which this country has been signed up to under all governments, for 50 years. We have derogated for five years. That seems sensible to us. We accept the point about the importance and seriousness of this legislation and the effect on the liberty of individuals. We fully accept that we originally planned to bring it forward by order after five years. However, we have inserted a full sunset clause so that, if they have not been repealed earlier, the powers lapse on 10th November 2006.

As it stands, Clause 29 provides adequate parliamentary safeguards. As the noble Lord, Lord Goodhart, reminded us, after 15 months we shall have the opportunity to consider an affirmative resolution. We shall have the report from the independent reviewer who will check what is happening on the key clauses. Thereafter, there will be annual renewal on the same basis for five years.

We must remember that terrorists do not work on a six-month timeframe. It is obvious from what we have read in public print that it took years to plan the events of September 11th. They have planned for events which we do not know about. That has probably already taken place. Frankly, to work in one-year timeframes for primary legislation is to send a signal that we are not taking international terrorism seriously. I have made it clear today, although no one seems to have taken it on board, that we are genuinely concerned and apprised of the speed at which the legislation is going through the House. We want to meet the desires of Members of both Houses. Hence the proposal at which I hinted or which I floated for noble Lords' consideration earlier today. My remarks then covered the whole Bill, not just one part. They covered the whole Act of Parliament, which I hope the Bill will become.

The designated derogation order has been approved for a life of five years. That is the benchmark we used for the sunset provision. There is the underlying fact that the threat we face has created that public emergency. We need to designate that before we can go for the order. Anyone who thinks that this is a fleeting emergency is not living in the real world. Parliament would not be taking the issues seriously—I think the public would see it that way—if every 12 months we were to introduce a brand new piece of legislation which had to go through all the processes in the normal, leisurely way. The implication is that there would not be emergency primary legislation each year but that it would go through the normal process. Such legislation may take six to seven months from introduction to Royal Assent. That would be quick for most Bills, but it would not be practical on this.

I accept that how the deadline is set is a matter of judgment. However, the derogation order from the ECHR is for five years. There will be further debates next week on sunset clauses on further important parts of the legislation. I shall be interested to hear the kind of case noble Lords make on Monday and Tuesday of next week.

10 p.m.

The Earl of Onslow

The noble Lord, Lord Rooker, said, quite rightly, that the gentlemen who flew aeroplanes into the side of the World Trade Center were absolutely awful and we needed to do something about it. I do not believe for one moment that had this Bill been an Act of Parliament on 1st January 2001 it would have made one iota of difference to what happened. If anybody can show me any evidence that this Bill would have stopped the events of September 11th I shall buy him a pint afterwards.

Legislate in haste and repent at leisure. We must have a sunset clause. If the noble Lord believes that it takes seven months to get a Bill through Parliament, so be it. If there is a 12 or 18-month sunset clause, the Government should start to plan the new legislation a year before so they can do it at a gentle pace before the old Act falls. But I remain to be convinced that this Bill would have made a blind hit of difference to the plans of someone in Afghanistan, Hamburg or wherever to attend a flying school in America and say that he wanted to learn how to fly and was not interested in either taking off or landing. I do not believe that this measure would have had any effect. Please, please, let us listen to the words of the noble Lords, Lord Thomas of Gresford and Lord Goodhart. Above all, we must listen to the Front Bench on this side about proper sunset clauses.

Baroness Williams of Crosby

I do not intend to intervene more than very occasionally in this debate, from which I am learning a great deal. With respect to the noble Lord, Lord Rooker, I found his argument rather hard to take. One of the key issues that terrorists are concerned about is the setting aside of democratic process; indeed, it feeds the very arguments that they make. I believe that on consideration the noble Lord would agree that if there were evidence of further terrorist attacks—that is perfectly possible—this House and another place would find every means possible to get even primary legislation through Parliament extremely quickly. There would be no question of a delay of seven months. In my time in this House and in another place I have witnessed primary legislation being passed within hours, or a few days—certainly not the seven months to which the noble Lord referred.

If there is no requirement that primary legislation must be introduced again on an annual basis, it is all too probable that this measure will remain on the statute book and gradually will be taken for granted, which is exactly how liberties disappear. Liberties disappear by a process of gradual reduction, which always looks all right at the time. They finally disappear and people cease to be used to them.

I hope that the Government will reconsider very carefully their opposition to this particular amendment which has the support of the Opposition and the Liberal Democrat Benches. I have a serious fear that if terrorism begins to disappear—I do not argue that it will but it could—to allow this measure to remain on the statute book for a period of five years, with all the temptations that that offers to deal with people by an administrative and not a proper legal and constitutional method, is to take a very large risk for which there is no justification.

Lord Elton

One of the paradoxes of the fight against terrorism is that one must surrender a bit of what the terrorists are trying to take. One must lose some freedom to be able properly to resist them, and that is the subject of this legislation. That point is central to our constitution. It is essential, therefore, that it should not be taken for granted. To make one slight adjustment to the very powerful speech of the noble Baroness, there will be no need to do it in a hurry. As my noble friend Lord Onslow pointed out, one will know three years ahead, if that is the period, when the next piece of legislation is required. It can be drafted .at leisure in the light of experience of the legislation that is already being operated. It takes parliamentary time. But that is what parliamentary time is for. It is for the protection both of the security of the state and the liberty of its subjects. That is what we are here for and that is what we should be doing.

Lord Rooker

The idea of having fresh primary legislation every year is not credible. That is what is being asked for.

We have derogated already for five years. The pressure on us would be enormous to reduce that. I must say to the noble Baroness that we cannot go on reducing forever. The derogation was a major step. It was not one taken lightly. I am sure that she fully accepts that. That in itself has a defined shelf life. I cannot visualise what the situation will be in five years—or ten years because there can be a further advance on that.

The noble Baroness and the noble Lord, Lord Elton, were correct. In some ways we are giving up a little of what we have in order to protect the rest. That is the price that we must pay. The basic concept is that our liberal democracy is under threat from those who wish to destroy it.

What do we do? Do we acquiesce to their demands in order to keep our principles? That would end up with us being destroyed. All we ask for is tightly controlled constitutional—I do not accept that they are not constitutional—powers of a limited duration. They will be fully scrutinised and reviewed by an independent reviewer—who happens to be a Member of this House—after 15 months and then every year.

Earlier today I offered the opportunity to have a further look at the way the Act works at that point in time. We are going up every avenue that we can to meet demands. But to have a tighter constant revolution of primary legislation would not make sense. Clearly, next week we shall debate these issues on the other parts of the Bill.

The derogation and the removal of people's liberty are absolutely and crucially important. The sunset clause in this part of the Bill is there for a specific reason. It is as well that it is there. We have put it there because, having considered the matter and listened to what has been said, in our view it is the best means of protecting our own liberties and making sure that we get legislation that Parliament can look at on a regular basis. It is not as though we shall not visit this matter again for five years. If that was the case, I would not have a leg to stand on in asking for the amendments to he rejected.

Lord Goodhart

Nothing in this group of amendments prevents the Government from getting what they want in terms of the right to detain suspected terrorists. All they impose is a duty on ourselves and on the Government to bring the matter back for further and fuller consideration within a period of 12 months. That is a small and reasonable price to pay for this extremely exceptional power to detain without trial, which may, I admit, be a necessary option in the special circumstances which now prevail. That may or may not be the case in 12 months' time.

There is nothing in the amendment that prevents the Government from bringing forward new primary legislation in 12 months' time if they feel that it is necessary to continue this legislation in force. But it has been clear from the debate today that there is a great deal that is controversial about this part of the Bill. We have had lengthy debates and very powerful challenges to the Government over, for instance, the SIAC procedure and whether it is adequate to meet the tasks that will be placed on it. So I must say that I am deeply disappointed by the Minister's reaction.

I have nothing to add to what was said eloquently by several speakers in this short debate—in particular by my noble friend Lady Williams and the noble Lord, Lord Elton. We shall unquestionably want to return to the matter later during the Bill's passage, either through pressing our amendments or, if we think it a better course, supporting the amendment that we understand that the Conservatives will shortly be tabling. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 123B to 123D not moved.]

Clause 29 agreed to.

Clause 30 [Exclusion of legal proceedings]:

Baroness Buscombe moved Amendment No. 124: Page 16, line 7, at end insert "save to review compliance with any rules made under section 5 of the Special Immigration Appeals Commission Act 1997 (c. 68). The noble Baroness said: Following the Second Reading debate in another place, the shadow Home Secretary consulted lawyers distinguished in the field to seek advice on whether, under the Bill as drafted, appeals on a point of law would include appeals on the point of SIAC failing to follow its own procedures. In debate in another place, my honourable friend Oliver Letwin asked the Home Secretary to reassure us that if it turns out that the ability to appeal on a point of law does not provide for appeals relating to the procedure of SIAC, the Home Secretary would immediately amend the law to ensure that such appeals were possible.

The Home Secretary agreed to, examine that matter for the purpose of clarification between now and the Bill's entry into the House of Lords".—[Official Report, Commons, 21/11/01; col. 392.] The Attorney-General will recall that I referred to that agreement during Second Reading in your Lordships' House. The Attorney-General was kind enough to respond. He said: The noble Baroness, Lady Buscombe, asked whether or not a point of law could include the fact that SIAC failed to follow its own procedures. I believe the better view is that it could. So there is a proper judicial route".—[Official Report, 27/11/01; col. 284.] I read that response to mean acceptance by the Attorney-General that there is a grey area. I hope that, in the spirit of that response, the Government have further considered the matter and will accept the amendment. I beg to move.

Lord Dholakia

My Amendment No. 125 is grouped with the amendment. We are concerned about the matter of exclusion of legal proceedings. It would be helpful if the Minister would explain why no court or tribunal other than SIAC could question the actions of the Secretary of State.

Earl Russell

I should also like to touch on Amendment No. 125. Clause 32 bears a remarkably close resemblance to the words in the Foreign Compensation Act 1950, which gave rise to the case of Anisminit, of which we have heard a good deal. That is a rather unfortunate precedent. In fact, it could be described as a red rag in front of the corpse.

I should also like to respond to what the noble Lord, Lord Rooker, said about five minutes ago. He said, not for the first time, that if we are to preserve our liberties, we have to sacrifice a large part of them—we must react; we must do things. With respect, that is hypothesis; it is not necessarily fact. If he looks at the history of state reaction to terrorism over the centuries, terrorism has benefited a great deal more from the over-reaction of the state than from its under-reaction. We might all bear that point in mind.

10.15 p.m.

Lord Goldsmith

Amendment No. 124 deals with a specific point and the noble Baroness, Lady Buscombe, was right in quoting what I said at the end of the Second Reading debate. I said that in my view the better view was that the Court of Appeal would view the question of compliance with procedure in appropriate cases as a matter of law, and therefore one in which they would have jurisdiction.

I understand the point that she is making. I still hold that view but I cannot say to the noble Baroness that I have taken my thoughts on that point any further. I shall therefore invite her to withdraw the amendment today. I shall give further thought as to whether I can dispel the lurking doubt that I have left in her mind and shall return to the matter.

Amendment No. 125 is potentially more wide-ranging because that picks up the effect of the SIAC procedure. I have spent a great deal of time today dealing with aspects of the SIAC procedure. I must take issue, I hope courteously, with a suggestion made by the noble Lord, Lord Thomas of Gresford. On Second Reading I said that judicial review was an inferior procedure to deal with these problems and he described that as nonsense. I am sorry he described that as nonsense because it was not. It was absolutely right.

The European Court of Human Rights in the Chahal case stated that, the availability of judicial review and habeas corpus to review the decision to detain Mr Chahal before the domestic courts did not satisfy the requirements of the European Court of Human Rights". It did not permit the review of the reasonableness of the decision of the Secretary of State. The SIAC procedure was developed in order to deal with the criticisms which the European Court of Human Rights had.

That is why the noble Lord, Lord Lester of Herne Hill—I hope that I do not misquote him—believes that SIAC was a fair compromise. It dealt with those problems. As I said at Second Reading, the SIAC procedure, or the Canadian variant of it, was proposed by Amnesty, the Air Centre and the Joint Welfare of Immigrants Association to the European Court of Human Rights in the Chahal case. The short answer to the proposition that judicial review would be better than SIAC is answered conclusively; it is not. There is nothing that SIAC cannot do that judicial review could do.

Why do we believe that SIAC procedure is better. It is because SIAC has a High Court judge, so it has the judicial element, and another judge in addition to a person with expertise in security matters and therefore can judge well and properly the security information. It has the competence already to consider two key issues: national security and immigration. Those are the issues it has been set up to deal with and those are the issues it would be required to deal with under the Bill. It was there to meet the points raised by the Strasbourg Court. I invite Members of the Committee to consider whether there is any point in setting up a specialist body of that kind and then not inviting it to do the work.

Let me pose the question in this way: let us say one went down the route of saying, "We want to have judicial review but we accept that it is necessary to deal with the special security-sensitive information". What would the court look like then? We would start with a judicial review court which would have a High Court judge. We have that. Then we would say, "We have to find a procedure to deal with the sensitive intelligence information. What is the best way of dealing with that? We must ensure that the tribunal has the information and that there is some way of someone testing it on behalf of the appellant if the appellant cannot see it. Let us have a special advocate. Let us ensure that there are good procedures to make sure that the applicant can see as much as possible".

Ultimately, we have the body which is SIAC. The commission is in place and it would not make sense to look for alternatives. We have in place an appeal to the Court of Appeal and appeal from there to the House of Lords. The entire judicial route is provided. As always, I understand the point made by the noble Earl, Lord Russell, but I suggest that it would be a misconception to consider that the form of judicial ouster in the Bill is unique.

The major difference between the Anisminit case, which is a pertinent case to which to refer, is that the Anisminit case stated that the decision of the Minister is final. There was no judicial review, or at least that was what was attempted in the clause. Here we do not seek to say that the decision of the Secretary of State is final. We say instead that a judicial process with a High Court judge and other specialists will review the decision of the Secretary of State, not that his decision would be final without judicial scrutiny. I shall give way to the noble Lord.

Lord Goodhart

I am grateful to the noble and learned Lord. Is not the flaw in his argument that of treating the SIAC procedure and judicial review as mutually exclusive? I know what has been said by my noble friend Lord Lester and I believe that he is most likely to be right in this; namely, that with judicial review, 99 times out of 100 the answer from the court will be, "We are not going to review your case because we think that the proper course is for you to go to SIAC". However, perhaps in only one out of 100 cases judicial review would have a role to play. What is the justification for excluding judicial review and for setting a precedent here, which is an extremely important feature, by going to the length of actually removing the right of judicial review in statute? Why not simply leave it in place?

Lord Goldsmith

I hope that the debates which have taken place on Second Reading and in Committee yesterday and this evening may have indicated that in what was quite an emotional argument about the absence of judicial review implying the absence of judicial scrutiny was in fact a misplaced concern. I do not seek to make a criticism because I entirely understand how it has come about. However, that is not the point, and the purpose of our debates is to try to clarify any misunderstandings and to recognise the real issues.

Lord Neill of Bladen

I should like to intervene on a minor point. The noble and learned Lord the Attorney-General is usually so accurate in all his statements that when he makes a not entirely accurate comment I venture to point it out. I think he said that there was a distinction between the Anisminit case and this one, in that it referred to the decision of a Minister not being called into question. On the contrary, it did not do so. It comprised exactly the same language as we have here. Rather, it was the decision of the Foreign Compensation Commission which could not be called into question. Thus it is an exact parallel to the position in the case before the Committee.

Lord Goldsmith

I am grateful to the noble Lord for reminding me of that point. Does the noble Earl wish to intervene?

The Earl of Onslow

I wished only to observe that when lawyers say that they are "grateful" for an intervention, basically what they mean is, "Oh bother, he has caught me out. I have fallen hook, line and sinker". That is what caused me to laugh.

Lord Goldsmith

When I wish to use such language, the noble Earl should not worry, it will be clear that that is what I am saying.

I am anxious that the debate should proceed on an entirely accurate basis and thus I am grateful for the noble Lord's clarification. I do not think that there was an appeal from the commission to the Court of Appeal. To that extent it is right that here there is a route from the commission to the Court of Appeal. In that we have a wonderful result for the lawyers; both of us are right to some extent—the noble Lord entirely and I at least in part.

But the essential point is this. No one has yet pointed out, once one looks at what SIAC actually does, what it is that judicial review would add. I have not heard anybody suggest something that judicial review would actually add. SIAC will do all that judicial review would do, and more. I make that point to emphasise its ability to review facts in a way that judicial review does not.

Lord Marlesford

Surely what we are in a way talking about is the appearance of justice. There may be few cases in which this will apply, but people are somehow uneasy that the new procedures will exclude the traditional procedures which are seen as a safety net for justice.

Lord Goldsmith

I invite the Committee to look upon it as a specialist court. We have other kinds of specialist court which do a good and better job. This court was set up precisely because the judicial review procedure and, indeed, the habeas corpus procedure, did not provide an adequate safeguard in the Chahal case, so said the European Court of Human Rights and, indeed, the "three wise men" procedure that we had at that stage. The matter can go to the Court of Appeal; it can go to the House of Lords. That is the point.

I hope that the debate has demonstrated that there is not anything that judicial review would add and, instead, that judicial review would not be as good as this.

Lord Phillips of Sudbury

I thank the noble and learned Lord for giving way. It is not fair to say that the debate has demonstrated that there is no role for judicial review. All that the debate has demonstrated is that no one sitting here tonight can give a clear-cut case where it might be relevant. As my noble friend Lord Goodhart said, it would be a foolish person who said that in no circumstances could it be relevant.

If the Attorney-General is right, leaving the normal provisions and protections in the Bill will damage no one; it will cause no obstruction to the intent of the Government or to the Secretary of State in future times. But if it is the case that the occasion arises where judicial review becomes relevant, the traditional remedy is there.

The noble and learned Lord is in a logical impasse in arguing as he does that, "There is absolute certainty that judicial review is not necessary but we insist on retaining the clause in the Bill". If it is absolutely unnecessary, why do we need the clause?

Lord Goldsmith

I am talking about the reality of the situation. I hope that I have persuaded noble Lords of the merits of the SIAC procedure. I will never persuade the noble Earl, Lord Onslow, but that is a cross I shall have to bear.

I invite noble Lords to consider that judicial review will add nothing; no one has shown that it will add anything—except possibly this: it will give the ability for delay and expense, which will assist no one. That is all the debate, I respectfully suggest, now comes down to.

Lord Thomas of Gresford

Perhaps I may follow the noble Lord, Lord Marlesford, in what he said about the public perception of these proceedings. The writ of habeas corpus is a prerogative writ; that means that it is in the name of the Queen. That is why proceedings are called "Regina against the Secretary of State ex parte on the application of X". Judicial review is the same inheritor of the prerogative writs of mandamus and certiorari and so on.

Habeas corpus was first talked about in 1200. The other prerogative writs are of a similar age. It is where the Queen, on behalf of a person under her protection within her realm, calls to account a Minister or whoever, or a public authority, and, on the application of that person, makes them explain what they have done. Contrast that with what the Government are trying to do with this immigration procedure.

I do not think that the Government want to treat this as an immigration matter but they want to avoid having to call people to an ordinary court of law, where there would be a charge, a trial, a sentence. It is far easier to go along with the immigration procedure. After all, it does not affect the Brits or involve the terrorists in Northern Ireland; it affects foreigners who enter this country. We do not really want them, we cannot deport them, and so we are going to deal with them in a different way. "We are not going to call the Queen in", say the Government, "and use the traditional methods; we are going to go along to a procedure which was not intended or constructed to deal with the liberty of the subject but to deal with deportation orders". That is why SIAC came into being. It was not to protect the liberty of the subject or anything of that sort, but to check whether a deportation order made by the Minister was correct.

When one has judicial review or habeas corpus, it is essential that the person who makes the application in the name of the Crown knows everything upon which the Crown relies. In other words, all the information and argument that is placed before the court must be disclosed to the applicant. As we have discussed, it may be necessary in certain circumstances to have safeguards in place in the form of public interest immunity certificates. It is better occasionally, although not very often, to forgo the proceedings and to allow the applicant to have his way rather than to reveal secrets. That is a view taken by the Government. But within that procedure there are safeguards that we have grown up with. They are part of the fabric of this country. We know what it means. It is something that we have inherited.

Here, in the face of an emergency in America, we are adopting strange procedures. We are detaining without trial in a way that we never have done, at least not in recent times, even in the face of the most extreme outrages such as the Brighton bombing, the Canary Wharf bombing and all the others. We have never found it necessary to abandon the traditional safeguards: trial, the criminal courts or the use of prerogative writs.

What judicial review and habeas corpus add is legitimacy—history and legitimacy, the sort of things that we seek to defend in our constitution. If the Minister does not see that, I am sorry. What he is putting in their place is, in a sense, a low-grade procedure which has the unique quality that the liberty of the person concerned is to be taken away and that person will not know why. I find that completely unacceptable.

10.30 p.m.

Earl Russell

I know that the Minister had to listen to an enormous amount of material during this debate, but will he kindly correct one remark. He said that no one had made an argument for anything extra that judicial review might add. I did, in my Second Reading speech. The Minister may have thought that it was not—as 1066 And All That would put it—memorable, but I did set out such an argument. I shall not elaborate on the matter now because I am about to return to it in relation to the next amendment.

Baroness Buscombe

I shall be brief. I thank the noble and learned Lord the Attorney-General for what I felt was quite a positive response. I hope that the noble and learned Lord and other Ministers have noted the extraordinary restraint on the part of the Opposition Front Bench in the debates on judicial review. We have adopted that approach because, although we are unhappy at the exclusion of judicial review, we understand the need to try and assist whenever we can in relation to the speedy passage of the Bill. In that sense, we felt that the minimum we should ask for was the possibility to appeal on a point of law involving the procedures of SIAC and where it fails to follow its own procedures. We wait with somewhat baited breath in the hope that the noble and learned Lord the Attorney-General will dispel our lurking doubts on Report.

It has been difficult for us to continue to show such restraint. There is still time in the coming days, through the next two stages of the Bill's progress, to unleash some of that restraint. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125 not moved.]

On Question, Whether Clause 30 shall stand part of the Bill?

Earl Russell

I apologise to the Minister if I have ignored other ouster cases. I remind him that I believe in the principles of natural justice. I therefore tabled a Question for Written Answer on 18th October asking what previous attempts had been made to restrict judicial review by statute and what had been the results of those attempts. I asked on Second Reading whether I could hope for an Answer before Committee. At three o'clock it had not yet arrived. If I miss out any precedent, as soon as I am informed of it I shall, of course, take account of it.

Lord Rooker

When the noble Earl gets his Answer, I hope that he will also get a written apology from one of the permanent secretaries. His Question has been batted around from one ministry to another. It arrived at my department on Tuesday—the day that he made his Second Reading speech. I apologise to him, because it will fall to me to answer him, but I shall see that he gets a proper apology from those who have batted his Question round. It is unacceptable that he has been held back by the delay in answering his Question. I have a draft response, which I am happy to give to him or to read out to him from the Dispatch Box.

Earl Russell

I should be most grateful if the Minister would do that. I think that it would be most helpful to the Committee.

Lord Rooker

I shall read out the Question and the Answer so that everything is on the record. The noble Earl asked the Government: What previous attempts had been made to restrict the right to judicial review by parliamentary statute and what had been the results of such attempts". The draft Answer says: There are numerous examples of statutory provisions which prevent review by the courts to a greater or lesser extent and it is not possible to provide a comprehensive list. Such provisions vary enormously, depending on the context in which they appear. For example, a statute may provide that a certificate by a Secretary of State shall be conclusive evidence of the matters contained therein. Alternatively, it may provide that a particular decision shall be final or conclusive or that it shall not be questioned in any court. In many cases, an alternative review process is provided for. Many of the statutory provisions in question have not been tested in the courts. Some of those that have been tested have been held not to prevent review—sometimes a limited review—by the courts". That is the end of the Answer.

Earl Russell

I am most grateful to the Minister. I thought that something like that had probably happened. As my late noble friend Lady Seear always used to say, it is not conspiracy, it is cock-up. That happens to all of us. I thank the Minister very warmly.

I noticed that his Answer was full of qualification. There were certain cases in which the courts had not been restrained by such provisions. Some of the examples were a good deal less far-reaching than the ones that we are considering here.

If I say that this is a grey area, I think that I am entitled to say that it is a very dark shade of grey. It is a doubtful constitutional area that brings some very wide questions into play. A lot of them extend a great deal wider than the Bill and are arguably more important than the whole of the Bill.

The defence of both Ministers has been throughout that SIAC is, in effect, a form of judicial review. In other words, no significant restriction is imposed. That is the maid's baby defence—it is a very little one.

My noble friend Lady Williams said that when our liberties are restricted, that is done by gradual reduction. I think of a case involving King James XI and I, who wanted to control the General Assembly of the Church of Scotland. His first move was to request that a meeting scheduled for a particular day could, as a favour to him, be postponed from the morning to the afternoon because he wished to attend. The elders of the kirk instantly recognised that request as the thin end of the wedge but decided that, were they to oppose it, they would appear ridiculous. They were right. It was the thin end of a wedge that went right through to the piece of wood to which it was applied. I cannot help wondering whether the SIAC defence is another in that line.

A full judicial review enables the court to look at the whole case. The SIAC procedure directs people strictly to certification. The Bill directs the proceedings of the court through the wording of Clause 34(3): Where this section applies the Commission must begin its substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate". That does not provide for any proper examination of the asylum claim or give the opportunity to consider the certificate in context.

On Second Reading, I raised the Nelson Mandela point that, depending on the situation, not all forms of terrorism are necessarily equally grave. The point made by the UNHCR is memorable, even if mine is not. It advances the major and material point that the exclusion of the asylum claim makes it impossible to consider the proportionality of the Secretary of State's certificate. If the claim is excluded, the judicial review is not sufficient and will not cover the whole case.

The number of Prime Ministers of newly independent Commonwealth countries since the war who have been in British prisons is high. How they related to this country when in power had a great deal to do—in some cases to my certain knowledge, in others in my belief—with how they had been treated by this country. One fine Sunday afternoon in August, my wife and I pretended to be tourists and went down the river to Greenwich. All the flags were flying at half mast, and we were told that that was being done for Mr. Jomo Kenyatta. Not all the people who have been regarded as terrorists necessarily need to be treated exactly the same way. Jomo Kenyatta's death was mourned in this country, by the white population of Kenya and by many people who would cheerfully have certificated him under the Bill. In future, are such people to be totally barred from free consideration in this country? Can we consider that question without proper judicial review?

More serious is that the proposed procedure makes a mess of the delicate web of authority woven between the executive, Parliament, the courts and the principles of natural justice—one of the few checks and balances in our constitution. That is far more far-reaching in its effect than anything that applies to the Bill. Because the common law is not entirely dependent on Parliament, we do not have an elective dictatorship. The common law rests on precedent. It does not owe its authority to Parliament. One can trace the common law back to 1189 and the limits of legal memory. In the 1960s, a case was decided on a charter of 1189, which was nearly a century before the beginnings of Parliament. So there are vires in the common law which do not originate from Parliament. That leaves one to reflect upon the question hinted at by Sir John Laws in his article in Public Law: what were the vires by which Parliament was first set up? The relationship between Parliament and the common law is an area which has not been thoroughly explored and which perhaps sometimes we may be prudent not to explore.

The principles of natural justice, or at least the few basic central principles of natural justice—to hear both sides and not to be judge and party in one's own court—go back beyond the limits of legal memory; that is, beyond the common law itself. So no lawyer can have an authoritative opinion on their origin. It is a long time ago, but the Government ought to know some of these things before legislating in an area which I do not believe they fully understand.

The question, "What is the comparative authority of the principles of natural justice and an Act of Parliament?", is not clear. I believe all of us in this Chamber agree that an Act of Parliament can do whatever it likes. But it remains for the courts to decide what an Act of Parliament has actually done.

The courts decided a long time ago that they were going to interpret Acts of Parliament according to the intention of the legislator. That goes right back to the days of Chief Justice Bearford, when judges actually helped to write the statute. He said in one memorable judgment, where it was being argued whether something was to be excluded because it was not in the statute, or included because it was implicit in the statute: He that drew the statute meant to put it in and only left it out through inadvertence. It shall therefore be construed to be in the statute". In another case in a parallel jurisdiction in Bologna there was a law making it a capital offence to shed blood in the palazzo. One of the judges was being shaved in the palazzo, and the barber nicked him and shed blood. He brought a case against the barber under the statute. But his brethren, his fellow judges, said that that was not in the intention of the statute so the case was dismissed.

It is along those lines that judges continue to say that something is so unreasonable that Parliament cannot possibly have intended it. In fact, it is the duty of judges to interpret the intention of Parliament according to the principles of natural justice, because when they first began to interpret the intention of Parliament, there were absolutely no records, save the statute itself, on which they could do it. That remains the case.

The noble and learned Lord, Lord Woolf, in 1996, said that if Parliament intends to confer a power to act unfairly—that is, a power contrary to the principles of natural justice—it must say so in express words. That seems to me to be a phrase pregnant with endless possibilities, not all of which I would be happy to see us forced to explore.

We should remember, to get this in perspective, that the first Acts of Parliament prohibiting murder were passed as recently as 1956. Indeed, I can remember making my maiden speech at the Oxford Union on it. So something absolutely central in our law rested on common law and on precedent long before there was any statute that could embody it.

There is here a web and a balance. We do not have many checks and balances here; we do not have a constitution; we do not have a recorded foundation; but we have a common law with which Parliament occasionally has to compete for authority. I understand that that is extremely inconvenient to Ministers; but that is precisely why it is so important.

Lord Neill of Bladen

In his review of the history of natural justice the noble Earl appears to have overlooked the 16th century case where natural justice was traced back to the Book of Genesis, because God, before expelling Adam and Eve from the Garden of Eden, gave them both an opportunity to respond to the charge; none was granted to the serpent.

Earl Russell

I thank the noble Lord. I was familiar with that case. However, since we are in an area where, after our debate on incitement to religious hatred last week we are facing a religiously plural society, I thought it best not to take up that line of argument because it led us into byways where I did not think we wanted to go.

Lord Goldsmith

I hesitate to intervene. I want to make three points, if I may, because I have said so much about this area. First, there are many other examples of judicial ouster. Dare I quote back to the noble Earl, Lord Russell, Article 9 of the Bill of Rights 1688? It provides for an ouster jurisdiction of the courts because nothing which is said in debates or proceedings in Parliament ought to be questioned in any court or place outside Parliament. That has been a successful judicial ouster.

There are other examples in statutes. We hate referred to Anisminit. In that case the House of Lords said that if it was not a decision it could review it. It was an ouster. Section 44(2) of the British Nationality Act 1981, RIPA, which has been referred to already, and the Terrorism Act are examples, and there are others. I suggest that there is not the constitutional problem which has been identified.

Secondly, on the idea of a judicial scrutiny by another route, I hope that the noble Lord, Lord Thomas of Gresford, will forgive me. I take exception to his expression of SIAC being a low-grade process. A process with a High Court judge and another judge as a security expert, if I may so put it, with an appeal to the Court of Appeal and the House of Lords is not a low-grade process. It is an important, robust judicial process

Thirdly, why do we say that that is more appropriate? It is more appropriate because it has the immigration experience, the security experience and can examine issues that the judicial review does not examine. For example, it has to look at the circumstances at the time that the matter comes before it. Judicial review is limited to reviewing a decision when it was made by the Minister. For that reason, it looks more at the substance than the judicial review would do.

Finally, I have touched previously on the point made by the noble Earl, Lord Russell. The SIAC procedure in this Bill deals with a certification. But the rest of the immigration decisions are themselves subject to the laid down procedures in relation to those decisions—an asylum application or a right to enter, for whatever reason it may be. That is reflected in the Bill. Clause 27(7) and (8) recognise that, because the key to this detention is an existing power under immigration law to detain, that may be the subject of an appeal; and if it is an appeal which is going to SIAC then Clause 27(8) provides that SIAC shall, so far as is reasonably practicable, deal with the two sets of proceedings together.

I stand unrepentantly on the proposition that there is not a practical effect given by judicial review that is not given by SIAC. Therefore, I hope that the clause will stand part.

Lord Thomas of Gresford

The noble and learned Lord the Attorney-General has taken exception to my description of the commission as low grade. That was perhaps excessive and I withdraw it.

I am sure he would agree that were it not for the clause that he seeks to put forward it would be an inferior tribunal which would be subject to certiorari through the High Court. That is the traditional role of certiorari: to govern inferior jurisdictions.

Lord Phillips of Sudbury

With regard to other ousters, the noble and learned Lord mentioned the British Nationality Act, RIPA, and the Bill of Rights 1688. None of those has an ouster in circumstances where the liberty of the subject is at stake in the way that it is here.

Lord Goldsmith

The Bill of Rights? The Terrorism Act? RIPA?

Lord Phillips of Sudbury

On the Bill of Rights, the ouster to which the noble and learned Lord referred was simply that Members of this House and another place could not be prosecuted for what is said within these walls. That is a very different kettle of fish.

Earl Russell

I hope that I may return to the Bill of Rights for a moment. First, I think that the Minister was not in this Chamber when we passed the Defamation Act 1996. I think when he recollects that he might realise that he has picked up a two-edged sword.

Lord Goldsmith

I should have thought that he would eventually, but that is a different issue.

Earl Russell

I think that all parties concerned in that picked up a two-edged sword. What the Bill of Rights created was a traditional mediaeval liberty—an area within which the officers of the law did not enter. It is a privilege which survived in Oxford and Cambridge colleges until quite recently. It is a very different principle indeed from the one invoked here. It is a principle of internal self-government. It is a local autonomy like the City of London. It is not an ouster of the jurisdiction of the courts which in any way is intended to diminish the liberty of the subject. I think any Member of Parliament will agree that parliamentary privilege, whatever it may have done nation-wide, has not diminished the liberty of Members of Parliament.

Clause 30 agreed to.

Clause 31 [Legal proceedings: derogation]:

Lord Goodhart moved Amendment No. 126: Page 17, line 7, at end insert— ( ) Section 6 of the Special Immigration Appeals Act 1997 (c. 68) shall apply to proceedings before the appropriate appeal court by virtue of subsection (3)(a) or (b) as it applies to proceedings before the Special Immigration Appeals Commission. The noble Lord said: I hope that I can deal with this briefly. It is in the nature of a probing amendment. There is a problem when cases go from SIAC to the Court of Appeal on a point of law. As we all know, frequently points of law cannot be decided in the absence of the facts. For instance, the question whether there is any evidence to justify a particular finding of fact is in itself a point of law.

Therefore, there may well be the need when cases go to the Court of Appeal to deal with matters which have been dealt with in front of SIAC by the special representative. I wish to be satisfied that in that case there will be a mechanism by which the special representative will be entitled to appear in the Court of Appeal, and no doubt on the basis of rules made in the Court of Appeal, for a hearing in camera and in the absence of the appellant. But it is clearly necessary that his case may be put. That is the purpose of Amendment No. 126. Section 6, which enables rules to be made for a special representative's appearance, will apply in the Court of Appeal as well as in SIAC itself. I beg to move.

Lord Rooker

We believe that the amendment is totally unnecessary as the indications from the Court of Appeal are that it considers it has an inherent jurisdiction to involve the special advocate should it wish to do so. I shall try to speak as briefly as the noble Lord, Lord Goodhart.

In the case of Rehman, the Court of Appeal said that it considered it would have the inherent jurisdiction to call the special advocate involved in the SIAC case if that would help the court deal with the proceedings before it. That being so, making provision in primary legislation on this point does not seem necessary. But more than that, it could actually be unhelpful. There are now a number of bodies which have the special advocate procedure and from which appeals lie to the Court of Appeal. The Prescribed Organisations Appeals Commission is one such body. If we legislated in respect of one of these bodies only—in this case SIAC—that would call into question what the Court of Appeal (or its equivalent bodies in Scotland and Northern Ireland) might be able to do in respect of other bodies with a special advocate procedure.

Although we accept that the special advocate may on occasions be able to assist the course of justice by appearing before the Court of Appeal—or before the House of Lords—we do not think that the amendment is necessary or desirable.

Lord Goodhart

I am grateful to the Minister. I still have some doubts about that because, as I understand it, there is no decision by which the Court of Appeal has allowed a special advocate to appear in front of it. It has merely expressed the view—it is an obiter view—that it might have or would have the jurisdiction to do so if it so wished. I should prefer to see this matter on the face of the Bill in order to put it beyond any doubt. It is clearly important that such a jurisdiction should exist. We do not want to be faced with a situation in which we must pass rapidly an emergency Bill in order to ensure that the special advocate has such a right to appeal, if called upon to do so. However, this is not a matter which I consider appropriate to take any further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clauses 32 and 33 agreed to.

Clause 34 [Certificate that Convention does not apply]:

[Amendment No. 126A not moved.]

Clause 34 agreed to.

Clauses 35 and 36 agreed to.

Lord McIntosh of Haringey

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.