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Lord Hardie: I thought I had made clear that that was my position about judicial review, that it would be open to someone to challenge the actings of a counting officer. I do not wish to comment about the use of the word "dictatorship".

Lord Burnham: Before the noble and learned Lord sits down, he may be aware of a very recent case in the general election. The result at Winchester may be challenged in the courts on the grounds that a block of votes was not counted. Obviously, I make no comment on the result of that. But is such an occurrence, which may have happened recently, not to be allowed to be handled by the courts?

Lord Hardie: If the returning officer failed or refused to count a block of votes, on one view that may be a failure to exercise his duties, but I do not want to speculate about such situations in this Committee.

Lord Mackay of Drumadoon: I begin by thanking the noble and learned Lord for his very full reply. I was interested to hear that he has had enough time to carry out his own research in response to this amendment. My experience of holding that office is that I was happy to leave such research to others.

I am grateful to the noble and learned Lord for dealing with what lay behind the two precedents. I am not entirely persuaded that they are exactly in point with the present Bill, which deals with advisory referendums. However, I take his point that no challenge was forthcoming when the relevant legislation was before your Lordships' House.

I was interested to hear what the noble and learned Lord said about how Clause 4 would fall to be construed by a court. He placed a relatively narrow construction on it, which was assisted by the contribution from the noble Lord, Lord Lester of Herne Hill. I am happy to say that the noble Lord is restoring the Liberal Democrat Benches to full support for the Government on this Bill. There was a brief hiccup in that position earlier today.

I shall read carefully what the noble and learned Lord has said because, contrary to some suggestions that have been made, we are not in the business of seeking to frustrate the Government's intention of holding the referendum some time in September. Indeed, if the Government get the vote that they seek, we are not in the business of seeking to frustrate them from placing the principal legislation before Parliament so that Parliament can then discuss in detail the major issues that arise from it. In the circumstances, I give notice to the Committee that I shall not insist on my opposition to the Question that Clause 4 shall stand part of the Bill.

Clause 4 agreed to.

Baroness Farrington of Ribbleton: This appears to be a convenient moment at which to break the Committee stage of this Bill. I therefore beg to move

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that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8.25 p.m.

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

House resumed.

Special Immigration Appeals Commission Bill [H.L.]

7.22 p.m.

Report received.

Clause 2 [Appeals]:

Lord Williams of Mostyn moved Amendment No. 1:

Page 2, leave out lines 18 to 20.

The noble Lord said: My Lords, if it is convenient for your Lordships, I should like to speak to Amendments Nos. 1, 2 and 3 together. These three amendments relate to a point to which I referred previously--that is, the need to take account of Article 8 of the European Convention on Human Rights in establishing the new appeal rights to the special immigration appeals commission. I have been greatly assisted in my consideration of these matters by the noble Lord, Lord Lester of Herne Hill, who is constantly astute (and rightly so) to any lacunae that may appear in the legislation in this rather--I almost said "arcane" area; the noble Lord will take that in the best sense because he is a practitioner in this arcane area.

As I said previously, the main intention in providing appeal rights in the Bill has been to ensure that there is no risk of a breach of Article 3 of the ECHR in cases where there is presently no right of appeal on national security grounds. As I have explained, the aim has not been to give a right of appeal in all cases where an appeal is currently prohibited. We wish to ensure that there is a proper review in those cases where detention may be an issue. For the most part, this means that a right of appeal is required in those cases where there is an in-country right of appeal which is precluded only by the existing provisions restricting rights of appeal in national security cases.

The Bill does not therefore presently give a right of appeal in cases where entry clearance is refused because the Secretary of State has decided that the person's exclusion would be conducive to the public good. There is no question of detention or an Article 3 risk in those cases--and there is therefore no need to provide a general right of appeal.

We have, however, considered whether any other articles of the ECHR might require a right of appeal in some circumstances. As can be seen from my amendments, we have given particular thought to Article 8, which deals, among other things, with the right to respect for family life.

Article 8 allows that national security considerations can justify interference with this right, but there is nevertheless a need to provide for an effective review of any decision to ensure that any interference is in accordance with the law and is necessary.

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For the ECHR rights arising from Article 8 considerations to be properly dealt with, the national security case underlying the refusal of entry clearance would need to be examined. If we do not provide a right of appeal to the new commission there would be a strong likelihood, following incorporation of the convention at least, that a court of judicial review would insist on seeing the national security details. For the reasons that I set out, which I believe found favour with your Lordships on the last occasion that we debated this, we would not want that to happen. We believe--I hope that your Lordships will assent to this--that it would clearly be preferable for any consideration of the national security case to be dealt with by a commission which has been set up especially to deal with any such cases which arise.

Our amendments limit the new right of appeal in refusal of entry clearance cases to those cases where the right to family life is truly at issue. That means there will be a right of appeal in cases where people seek entry to the United Kingdom under the immigration rules to exercise rights of access to a child resident here (paragraph (b)(i)); as the spouse or fiance of a person present and settled here (paragraph (b)(ii)); and as the parent, grandparent or other dependent relative of a person present and settled here (paragraph (b)(iii)). We do not envisage that there will be many cases where this extended right of appeal will be needed. However, there may be some. In the circumstances, it is clearly preferable to provide a right of appeal to prevent potential difficulties which we have identified.

The structure is simple. Amendment No. 2 restructures Clause 2(2) and inserts the new rights of appeal. Amendment No. 1 is simply consequential to this restructuring. Amendment No. 3 defines the term immigration rules which is inserted by Amendment No. 2. I commend the amendments to the House. I beg to move.

Lord Lester of Herne Hill: My Lords, I must be careful not to be too complimentary to the noble Lord, Lord Williams of Mostyn. I say that because when my wife read the Official Report of the Committee stage of this Bill she said that she had never seen so much flattery or so many compliments paid by each of us to the other. Indeed, it reminded her of the situation at the end of the 19th century when there were two constitutional legal historians, one called Freeman and the other called Stubbs, who always wrote favourable book reviews of each other's work until a wag wrote a piece of doggerel in which he said something like:

    "Ladling butter from alternate tubs; Stubbs butters Freeman; Freeman butters Stubbs".

The trouble is that I greatly admire the work that has been done by the Government and their advisers on this Bill to make it legislation of which we can all be proud.

I strongly support the amendment because it gives proper effect to the right to respect for family life in Article 8 of the convention. It also gives proper respect to European Community law. It also does something very important: it makes the special immigration appeals commission a one-stop shop. If one is setting up a

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commission of such repute and expertise, I am very much in favour of ensuring that the problems are tackled by that body and not by a splintering of the jurisdiction. I agree with the Minister that it would be undesirable for a judicial review court to be involved in this area and that it would be better to have it within the jurisdiction of the special immigration appeals commission. This is a generous provision. It is hardly likely ever to be exercised in practice, but it seems to me to be clear and right. I support it.

Lord Williams of Mostyn: My Lords, I am most grateful for those remarks. I do not believe that there is any other contribution to be made. Accordingly, I ask that your Lordships approve the amendment.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 2 and 3:

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