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Mr. Letwin: We agree on so much, but does the hon. Gentleman agree that Lords Donaldson and Mayhew are minded to accept the Government amendment because it does not preclude judicial review? Indeed, amendment (a)(4) specifically provides for a superior court to question the legal proceedings and makes it possible by denominating SIAC part of the High Court. That is precisely why, in the opinion of Lords Donaldson and Mayhew and of my party, the amendment no longer constitutes a devastating precedent of the kind that so many noble Lords rightly referred to in that debate.
Simon Hughes: I welcome the way in which the hon. Gentleman has approached the Bill and I understand the argument, but we have not reached the same conclusion for the following three reasons, which I shall describe.
First, it strikes us as illogical to try to exclude judicial review in this case, outside the new process that is being suggested, when it was not excluded in the earlier "concept in use" context of SIAC. Secondly, as was said by many speakers on the Cross Benches and on both sides of the House of Lords, one can never tell what procedural or other irregularity one might wish to question. It might be an executive decision by the Home Secretary to issue a certificate to detain someone, or—although I accept that this would be much less likely if the proposal were accepted—a procedure further up the chain. Certainly, however—my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) asked about this—it cannot be the case that a process that might preclude an appeal on the basis of fact and allow it only on the basis of law would not allow an adequate remedy.
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Finally, we think that, for reasons of precedent and principle, if the measure adds nothing it will either never be used, or be used so rarely that it will exist merely as a
reserve power to be employed in exceptional circumstances. It cannot be necessary to preclude an eventuality that we may or may not be able to anticipate.
Mr. Letwin: That is the nub of the issue. Does the hon. Gentleman acknowledge that in that same debate in the Lords, which I attended myself, Lord Donaldson agreed that a judicial review by the High Court—not SIAC—would necessitate the adoption of SIAC rules, because it would otherwise be impossible for the security forces to reveal to, for example, a barrister appointed by al-Qaeda, who might be an al-Qaeda adherent, information on which the reasonableness of the Home Secretary's decision could alone be judged? Did it not become clear at that point that the distinction between the High Court's adoption of SIAC rules and the redenomination of SIAC as the High Court was, in fact, no distinction?
Simon Hughes: If the amendment would make SIAC a court rather than an administrative tribunal—it appears that it might do so, but I put this neutrally—that is certainly an improvement. It is interesting that we are creating what is effectively a new administrative court, or at least a new administrative division of the High Court, at this stage rather than next year, when we shall look at the review of the court system—although the process is not entirely satisfactory.
Colleagues in the other place who are more eminent than me in terms of practice in these matters—including Lord Thomas of Gresford and Lord Lester of Herne Hill—have suggested to me that there may be circumstances that are not covered by the new, enhanced power of SIAC to review cases. It is also felt that the onus must be on the Government to show that there is a public interest against an ability to opt for the conventional occasional judicial review.
Mr. Fisher: Will the hon. Gentleman help me to understand what Lord Donaldson proposes? Is he saying that, having been designated a court of record, SIAC will be able to constitute the location for judicial review of decisions that it has already reached? Is that not legally tautologous?
Simon Hughes: Courts can do that. If the hon. Gentleman, who is very assiduous, reads the speech made by Lord Donaldson on Report, he will see that the Court of Appeal has sometimes been called on in the middle of its hearings to perform a sub-exercise involving judicial review of an issue raised in another court. Bizarrely, that can happen.
There is a wider point, however—the point on which our analysis differs with that of Lord Donaldson. For reasons given by the hon. and learned Member for Medway (Mr. Marshall–Andrews), merely conferring a power to record proceedings, and conferring greater status, will not necessarily deal with every eventuality. Furthermore, it will not confer all the powers that may be needed to check the decisions of the Secretary of State in regard to detention, and the processes thereafter. It will not cover all the safeguards connected with human rights that a citizen might need—safeguards relating to time, language translation, legal aid and advice and, most important, the certainty of knowing the case against him or her at every stage. We believe that that can be dealt with adequately either by the court going into secret
session—my hon. Friend the Member for Torridge and West Devon asked about that too—or by the issue of a public interest immunity certificate or the like.
Mr. Hogg: As the hon. Gentleman would accept, one of the problems is that SIAC has a power to withhold from the detained person pieces of evidence. As I understand the procedure contained in the Bill, no one will be in a position to review whether SIAC's decision to exclude bits of evidence from the detained person was good or bad. That seems to be fundamentally unjust.
Simon Hughes: The right hon. and learned Gentleman's point is strong. As the Home Secretary said, one court will not judicially review another court, so it cannot do that. An important evidential point about the defendant meeting the case against them may never be able to be looked at again. Those seem to be among the reasons why the procedure does not give assurance.
I am conscious of the fact that normally the reviewing court, whether it has examined local council decisions or other decisions, has accepted the view of the initial court, but just occasionally it intervenes and says that that court got it wrong: procedurally and evidentially, there was an unfairness. It is that overriding final judgment that is being limited, which seems unjustified, even in exceptional circumstances.
Mr. Letwin: Does the hon. Gentleman agree that it is at least the proposition of Lord Donaldson, who I repeat is in a privileged position in talking about this matter, that under subsection (4) of Government amendment (a) to Lords amendments Nos. 21 and 22, the court of appeal could question the proceedings of the commission in respect of the matter raised by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)? That is critical.
Simon Hughes: Again, we are showing the weakness of the timetable. There is a limitation in subsection (4) of the amendment to the original Act setting up SIAC, which I shall read into the record:
- "A decision of the Commission shall be questioned in legal proceedings only in accordance with"
The fact that we are arguing about whether the alternative gives the guarantees is in itself a final argument for asking the House to reject it. Is it worth risking being found in breach of European law, being out of step with all our other European colleagues and someone being treated unjustly to devise a new procedure? Existing procedure perfectly adequately answers the question. As I hinted earlier, we are willing to accept that judicial review could have a time limit, and that evidence can be protected so that secrecy can be maintained, but the Liberal Democrats are not persuaded that, for this occasion and in this way, either for precedent or principle, judicial review should be written out of this part of British legislation. In the most extreme cases, we need the greatest protection most.
Denzil Davies: I shall be brief. My right hon. Friend the Home Secretary will be surprised to hear that someone
who is sitting behind him and who is a lawyer supports him in the belief that he has gone as far as he possibly can in a very difficult situation. I promise him, and my hon. Friends around me, that I will never do it again.
Jeremy Corbyn: It is the last time.
I find myself in some difficulty in that I appear to be at least indirectly endorsing the views of Lord Donaldson. I was in the House a long time ago when he existed in a different incarnation. Perhaps he was not quite the civil libertarian in those days that he has become since, especially when he was made Master of the Rolls.
I shall not follow the hon. Member for Southwark, North and Bermondsey (Simon Hughes) down the by-ways of the European convention. If the matter goes to court and if Mr. Pannick represents those who take it to court, the matter will have to be considered. In any case, my right hon. Friend the Home Secretary has gone as far as he can. Judicial review is a splendid procedure and nobody can be against it, especially lawyers, but it is not perfect. It cannot consider the merits of a case, merely whether a decision is lawful or unlawful. It can also consider whether a decision is reasonable, in the sense of whether a reasonable person would have come to that decision.
The difficult immigration case of Chahal went eventually to the European Court of Human Rights, which trenchantly criticised the UK system of judicial review. However, I do not suggest that that case is on all fours with the present situation. Nobody likes special tribunals but SIAC was set up to try to deal with the real problems of the Chahal case. On balance, I am not sure about the court of record and from my law exams, I seem to remember a concept that lawyers called an error on the face of a record. If SIAC had experienced a procedural problem—for example, evidence had not been properly considered—but not a problem of substantive law, that would be an error on the face of the record and could be considered by the Court of Appeal, which may only consider appeals on points of law. That applies also to errors on the face of the record, which could mean a procedural or evidential error on the part of SIAC. I do not like that approach, and my right hon. Friend the Home Secretary probably does not like it either.
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