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David Winnick (Walsall, North): The only issue on which I voted against the Government in this context is judicial review. I shall listen with great interest to what my right hon. Friend has to say about that. Is he aware that in the previous Parliament I asked his predecessor a number of questions at meetings of the Select Committee on Home Affairs about those who are alleged to have been much involved in terrorism abroad, who were using Britain as a safe haven, but who for various reasons could not be tried? It would be naive of us not to accept—there is one such case in the United States—that there remain a number of people who, in my view, are certainly a danger to communities abroad and to Britain itself.
8.45 pm
Mr. Blunkett: I agree entirely; that is why we must take the action that we are proposing. In two seconds, I shall deal with the issue of judicial review, which has strongly exercised my hon. Friend and many others, including Members of the House of Lords.
First, however, we are endeavouring to answer the question of how to deal with the situation, either by withdrawing—temporarily or otherwise—from the European convention on human rights and taking action to remove people elsewhere in the world, or by removing the power to detain or remove people in circumstances in which the usual court proceedings, because of the risk posed to the security and intelligence services and those working for them, do not allow us to present that evidence. We are dealing with that tonight.
We have chosen the road of proportionality and the middle ground. People have accepted that the Special Immigration Appeals Commission, unanimously set up by
both Houses, was an appropriate avenue for presenting such evidence in the circumstances that I have just described—it would not be appropriate to present such evidence in open court—on the certification of the Home Secretary, to remove someone, either on security grounds or because their presence was not conducive to the public good. Now we are having to decide whether, when we cannot remove someone without putting their life at risk, that mechanism is appropriate to detain them, albeit with constant reviews of the position and given the fact that that the individual can leave the country, should they find a safe place to go.
Mr. Douglas Hogg (Sleaford and North Hykeham): I wish to raise two matters with the Home Secretary. First, Government amendment (a) states that the Special Immigration Appeals Commission will be deemed
- "a superior court of record".
Mr. Blunkett: I was about to deal with the issue of making SIAC an administrative court and superior court of record.
The right hon. and learned Gentleman described the situation correctly. Elements of presented evidence are withheld, but not from the advocate appointed on behalf of the individual.
Mr. Hogg: He is appointed, not chosen.
Mr. Blunkett: He is appointed for that purpose, although the individual can choose legal representation. As I have said in previous debates, the individual can, if they wish, retain that advocate in the Court of Appeal and the House of Lords
I have it on good authority that those who have expressed the gravest concern about judicial review—Law Lords and ex-Law Lords in the House of Lords—believe that the designation of SIAC as a superior court of record and administrative court will meet their concerns because its procedures will provide the equivalent of judicial review.
Mr. Robert Marshall-Andrews (Medway): May I assist? A court of record simply means that the proceedings are recorded with a view to them subsequently being subject to scrutiny on appeal or by way of precedent. As there is no appeal from SIAC except by way of law, and as it is not a court of precedent, what is the point of making it a court of record?
Mr. Blunkett: It establishes—beyond peradventure, as Lord Heseltine would have said—the position, the status and the record, which can be carried forward. My hon.
and learned Friend is always helpful to me. I know that he comes into the Chamber for that purpose alone. I look forward to his being helpful to me again and again, for many years to come.The right of appeal on those aspects that would be appropriate to the Appeal Court of the House of Lords will be granted. I take the word of those who, over many generations, have been engaged in the law that that overcomes their concerns in respect of the issues that we have debated at length—for example, how we deal with a review of a review, where the evidence that must be adduced and presented must be in the same form, with the same complete security, as in the previous review.
That is why we argued the case in terms of whether the Special Immigration Appeals Commission needed a new SIAC to review it. If that means designating a superior court of record and confirming the level of the judiciary involved, as in a Crown court, so be it. In other words—just to show my hon. and learned Friend that I have some grasp of the law—the Crown court cannot be judicially reviewed as a Crown court.
Mr. Weir: In Scotland any decision by a Government Department can be subject to judicial review by the Court of Session. Under the new legislation, will the matter be decided only by SIAC, and will the Scottish court no longer be able to carry out a judicial review?
Mr. Blunkett: On that very issue, I was pleased to help one of the hon. Gentleman's colleagues, who participated in the debate in Committee, having missed Second Reading because she was in her constituency. I hope that the hon. Gentleman was not otherwise engaged at the time, as it would be a shame to go over the explanation again. I explained at enormous length the operation of the Special Immigration Appeals Commission and its jurisdiction. I do not want to be unhelpful, but as any hon. Member who was present on Second Reading and in Committee will recall, we took every intervention. Whatever else hon. Members disagree about, they cannot deny that we have spelled out in words of one syllable how SIAC works.
In the present context, we are seeking to deal with the situation of people who would otherwise have been removed on the certification of the Home Secretary, who appeal through SIAC, and who are to be detained if they cannot be removed. We are trying to ensure that the process works.
Mr. Letwin: I hope that the Home Secretary will accept my question as genuinely helpful. Does he agree that when the noble Lord Donaldson accepted the amendment, the view that he took—he holds a special position in our judiciary—was that the effect of denominating SIAC as a superior court of record would be to turn it into a clear part of the High Court and give it all the powers of judicial review that would otherwise pertain to the High Court, but with the special procedures of SIAC in place, so that the information made available by the security services would not be compromised when it was given to the court?
Mr. Blunkett: That is entirely correct. I am grateful for the succinct presentation, as ever, of the way in which Lord Donaldson and others who have examined the
provision understand it to work. It is on that basis that we are resisting amendments Nos. 21 and 22 and seeking to gain agreement on the way forward on this specific issue. I know that some hon. Members on both sides of the House will remain convinced of the position that they held from the beginning, which is that this part of the Bill should not be proceeded with. We must continue to have a genuine disagreement on that point. However, we have done our utmost to secure the agreement of those who understood the reasons for the provisions, but were concerned about the nature of the process.
Simon Hughes: With regard to court procedures, first, does the Home Secretary accept that it is possible at any level for courts to sit in secret and that the Government can at any stage issue a public interest immunity certificate, which means that some evidence or information may not be revealed? Secondly, one of his concerns may be that judicial review will often be used or often be successful, or that it will be abused and cause delay. The evidence is that it succeeds about one in 100 times, and it has never succeeded in relation to SIAC so far. If he has that concern, does he accept that one could time limit a period by which a judicial review could be made, in order to deal with any possibility that it might be used as a delaying tactic?
Mr. Blunkett: Of course, the first part of the hon. Gentleman's question relates directly to the second part, as one would agree to the second only if one accepted the first, which involves the holding of proceedings in camera in a normal court and the evocation of public interest immunity to the point where not only the evidence that is presented would be protected, but those presenting it and those working on behalf of the security services. The security services made it absolutely clear to me—I do not think that I am breaching any confidence in saying this—that they would bring no cases forward if we used the normal court system and attempted to use public interest immunity.
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