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Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. I have in mind the various comments made about judicial review. Am I to understand that, in effect, the Special Immigration Appeals Commission will have full powers of judicial review on the merits of a case, subject to the special procedure that is provided for? Am I to understand that it will have the kind of powers that the High Court would have by way of judicial review—obviously with procedural adjustments?

Lord Rooker: My Lords, as a non-lawyer—I am an engineer by profession—my understanding is that the operation of the Special Immigration Appeals Commission is effectively a judicial review on the Home Secretary's decision, first, to sign the certification and, secondly, to order the detention because he does not believe that removal is possible. That being the case—and it is behind closed doors—the commission could review each stage of the Home Secretary's decision and how he has arrived at the point where he believes detention is the only alternative. To that extent, the commission ought to have access to all the information that the Home Secretary has, including his thinking as to why he cannot remove the person, because country A or country B is not compatible with our obligations or Article 3. To that extent, the commission would have the broad-ranging authority to examine the decision. I take the point made by my noble friend Lord Corbett that the decision would necessarily be made behind closed doors.

Earl Russell: My Lords, I am grateful to the Minister for giving way. I am sorry to intervene again. But is his reply to my noble friend Lord Lester compatible with Clause 33(3) of the Bill:

"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"?

19 Nov 2001 : Column 904

Does not that block a consideration of the full merits of the claim to asylum; and does it not restrict the power of review of the reasonableness of the Home Secretary's decision?

Lord Rooker: My Lords, with respect, that is another issue. It is one that we shall debate and, I would argue, not one relating to the order. There may be foreign nationals resident in this country who have already gone through the process and secured refugee status; they may have been classified as refugees under the terms of the 1951 convention. If we follow this process through, it could be argued that they would not be making a claim for refugee status, because that would already have been done. Clause 33 therefore takes account of this. That is best left, however, because we are getting into the details of the Bill. I may be wandering down a road where I would mislead the House, and I do not intend to do that.

I reiterate the point about the timing and why we did not want to leave it. If the order ceased to be valid, if it was not approved within 40 days, by resolution of each House, it would lapse. I have benefited from this debate, however. Without the order, we would not have had it. My officials, those responsible for designing this Bill and other Ministers, even in the other place, will have benefited from this debate today. To that extent it has been a useful operation, in terms of parliamentary accountability for the Government, to have it now rather than have it at the end of our processes.

The Home Secretary will bring forward amendments to Clauses 21, 25 and 26, which I believe will fully meet the point about the reasonableness test. We accept that all Ministers operate at all times in a reasonable fashion. If they did not, my learned friends would have something to say about it. If putting it on the face of the Bill brings a greater degree of contentment, then we are happy to do that. We shall bring forward amendments, though I do not know whether they will be brought forward in this House or in the other place.

We envisage that the validity of the derogation could be raised before SIAC and, from there, the Court of Appeal and the House of Lords. It could be challenged all the way through the judicial process. That is why we are more than comfortable in respect of Clause 29 and the point made by the noble and learned Lord, Lord Mayhew, in terms of the absence of judicial review. This whole process is a very narrow judicial review of the Home Secretary seeking to deal with an issue in the only way that he thinks is possible. Having failed in the sense of a prosecution—that not being possible for the reasons I have explained—he cannot remove someone and therefore is left with no alternative but to detain.

Lord McNally: My Lords, we have just seen the Minister swimming valiantly for shore, clutching the lifebelt thrown to him by the Conservative opposition. What we did not hear was any real answer—other than it had given him and his officials some useful clues about the debate to come—to what I would call the

19 Nov 2001 : Column 905

Richardson-Carnegy question which, a little like the Rooker-Wise amendment, is a kind of "killer" question. Why does an order that could last 40 days to 21st December have to be brought right to the front of the process when the Minister himself has conceded that if there are substantial changes he will have to bring another order to this House? We have not had an explanation.

I shall not delay the House for much longer. A number of points have been made. The noble and learned Lord, Lord Mayhew, even called me noble and learned. I am not sure whether to take that as a tribute or to consult with the lawyers behind me about possible slander. The serious point I make is in answer to the noble Lord, Lord Mishcon. It was on his own Benches that we saw the polarisation of the debate: between the noble Lord, Lord Davies, arguing force majeure and the noble Lord, Lord Corbett, defending civil liberties. Perhaps I may say to the noble Lord, Lord Mishcon, that it is not that we have short memories; we have long memories. The memory we have is that, from Fox to Aneurin Bevan, oppositions have taken their opposition seriously. Even at times of crisis and even at times of war they have defended civil liberties and human rights. We believe that the Government are wrong to bring the order forward at the beginning of this process, before we have the full opinion of the House and the full dimension of the derogation that they want. For that reason, I ask to test the opinion of the House.

5.15 p.m.

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 69; Not-Contents, 148.

Division No. 1

CONTENTS
Addington, L.
Avebury, L.
Barker, B.
Bowness, L.
Bradshaw, L.
Brookeborough, V.
Bruce of Donington, L.
Carlile of Berriew, L.
Clement-Jones, L.
Craig of Radley, L.
Dahrendorf, L.
Dholakia, L. [Teller]
Elis-Thomas, L.
Ezra, L.
Falkland, V.
Fearn, L.
Geraint, L.
Goodhart, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Holme of Cheltenham, L.
Hooson, L.
Hylton, L.
Jacobs, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Ludford, B.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Methuen, L.
Moynihan, L.
Newby, L.
Northover, B.
O'Neill of Bengarve, B.
Oakeshott of Seagrove Bay, L.
Oxford, Bp.
Perry of Walton, L.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Rodgers of Quarry Bank, L.
Roll of Ipsden, L.
Roper, L. [Teller]
Russell, E.
Scott of Needham Market, B.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Swinfen, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Watson of Richmond, L.
Williams of Crosby, B.
Wilson of Tillyorn, L.

NOT-CONTENTS
Acton, L.
Ahmed, L.
Alton of Liverpool, L.
Amos, B.
Ampthill, L.
Andrews, B.
Ashley of Stoke, L.
Ashton of Upholland, B.
Attlee, E.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Bledisloe, V.
Borrie, L.
Bragg, L.
Brennan, L.
Brightman, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carnegy of Lour, B.
Carter, L. [Teller]
Chalfont, L.
Chandos, V.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Cox, B.
Crawley, B.
Currie of Marylebone, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Denham, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Golding, B.
Grabiner, L.
Graham of Edmonton, L.
Gregson, L.
Grenfell, L.
Grocott, L.
Hannay of Chiswick, L.
Hardy of Wath, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Janner of Braunstone, L.
Jay of Paddington, B.
Jenkins of Putney, L.
Jones, L.
King of West Bromwich, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Marlesford, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Mayhew of Twysden, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Mishcon, L.
Mitchell, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Mowbray and Stourton, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Radice, L.
Rendell of Babergh, B.
Richard, L.
Rix, L.
Rooker, L.
Sainsbury of Turville, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sawyer, L.
Scotland of Asthal, B.
Serota, B.
Sheldon, L.
Sheppard of Liverpool, L.
Simon, V.
Smith of Leigh, L.
Strabolgi, L.
Strange, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Wedderburn of Charlton, L.
Whitty, L.
Wilberforce, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)

Resolved in the negative, and amendment disagreed to accordingly.

19 Nov 2001 : Column 907

On Question, Motion agreed to.

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