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Lord Rooker: My Lords, I am sorry to interrupt the noble Earl, but for the avoidance of any doubt, the Home Secretary and I have both made it clear that we are working on rewording that paragraph. We will bring forward another form of words. The current wording is unsatisfactory and we are going to deal with it.
Earl Russell: My Lords, I thank the Minister warmly for that. It is exactly what I had hoped I might hear him say.
On certification, appeal is to be made within a fixed time. I would be grateful if it were possible to insert the words Xcan only be made in the fixed time without leave". There are cases, particularly former torture victims and former rape victims, who have great difficulty in telling their story or in making any serious communication until a long time afterwards. The Home Office would do itself nothing but good by allowing a safety valve for such cases.
My greatest concern is about the restriction of judicial review. I heard what the Minister said on 19th November about judicial review. But the SIAC review does not deal with the basic facts. That is a very big gap. The sheer fact of Parliament attempting to restrict the power of judicial review I believe has implications which stretch far wider than the whole contents of this Bill, important though it is.
It is important that Parliament is not the only source of legal authority. The authority of the common law predates Parliament by a pretty long time. Legal positivists from James VI and I to Michael Howard have always found that fact irritating to them, but fact it remains and there is no way it can be denied. The principle of natural justice, which is the foundation of judicial review, as far as we know predates even the common law itself.
The noble and learned Lord, Lord Mayhew of Twysden, who always interests me and with whom I usually agree, seems to make a habit of saying one thing in each speech with which I can disagree, just to keep us going. He referred to the dark days before administrative law when he said that there was no judicial review. But may I draw his attention to the case of Ridge v. Baldwin 1964, which is one of the earliest successful cases of the noble and learned Lord, Lord Ackner, as he now is. If you look at the list of citations it begins with one from Coke's Reports of 1618. I have looked up that citation, which is right in the middle of the area of my own research. It is correct in the spirit and the letter and one of a very large sequence of cases of the same type. In fact, the power of judicial review goes back a very long way indeed.
It is also important because, as the noble and learned Lord, Lord Mayhew, said—and on this I do agree with him—there is a very real risk that attempts to restrict it may, in his words, Xprove futile". That is because judges from the beginning set out to construe not just the letter, but the intention, of Parliament. They were doing that not only before Pepper v. Hart but before there were any parliamentary records whatsoever. So the only way they could do it was to assume the intentions of Parliament were in line with the principles of natural justice, as they still do, which is why the noble and learned Lord, Lord Millett, in the case of Bate v. The Chief Adjudication Officer, which I believe was in 1993, said,
- XThe Secretary of State's explanation of this clause is so unreasonable that Parliament cannot possibly have intended it".
The noble and learned Lord, Lord Reid, in the case of Anisminit v. Foreign Compensation Commission (1969), said,
- XIt is a well-established principle that the provision ousting the ordinary jurisdiction of the court must be construed strictly, meaning, I think, that if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court".
Lord Reid is a judge much honoured in many quarters. Indeed, reading The Times Law Reports of his cases first began my serious interest in the law when I was a schoolboy. I believe that that is something which the courts might continue.
The alternative scenario says that it could lead to disaster and since Murphy is the only person whose legislation is unrepealable at Westminster, I have a distinct fear that both might prove to be the case. In the short term I believe that attempts to restrict judicial review will prove futile and when the Home Secretary comes to terms with the fact that that is the case, I believe that a balance of power within our constitution, which is a vital part of why we have a claim to resist terrorism, could be in a danger greater even than that of 11th September.
9.20 p.m.
Lord Marlesford: My Lords, the Government have no greater obligation than to defend the nation state against armed aggression. I defer to no one in my support for such defence. The challenge we face and against which this Bill must be measured are the events of September 11th.
The terrorist plan was to send five deadly missiles against four targets. Those targets were what the terrorists saw as the Great Satan, but what many of us believe represent the source of prosperity and peace for the world: the World Trade Centre, the success of global capitalism; the Pentagon, from which the freedom of the world was protected throughout 50 years of Cold War until economic competition won the
struggle peacefully; the White House, the seat of government of the world's superpower; and the Capitol building in Washington, a beacon of democracy for two centuries. Three of the weapons hit their targets. A 60 per cent success rate would be a remarkable tribute to planning and logistics in any military strike. So we are up against a truly formidable enemy.I propose to use my time this evening to examine the credentials of the guardians of our security who have devised measures in this Bill; that is, the Home Office. After all, we are being asked, as another place was asked, to take most of their proposals on trust. Although there have been a number of distinguished Home Secretaries—and I have admiration and respect for both Mr Straw whom I regard as a personal friend and Mr Blunkett—they have had to preside over the most constipated department in Whitehall.
After observing its performance over many years, first in Whitehall myself, then as a journalist and more recently from this House, I do not believe that we can trust either the judgment or the effectiveness of the Home Office. However, the new Permanent Under-Secretary of the Home Office, John Gieve—recently appointed from the Treasury where he was Director of Public Services—has a high reputation. He was responsible for seeing that the Home Office was restructured as a potentially effective Ministry of Criminal Justice, which means that it has been shorn of some of its peripheral responsibilities. He has the challenge to make the Home Office into an effective instrument in the battle against terrorism.
I shall seek to illustrate what I mean by some examples that are directly relevant to the objectives of this Bill—the battle against terrorism. After the Dunblane massacre the Conservative Government introduced the Firearms (Amendment) Bill 1997. I had noted that there was no way in which the police forces of this country could rapidly discover who was licensed to hold a firearm and who had been refused such a licence. With all-party support I introduced an amendment to the Bill to require the establishment of a central register of persons who have applied for a licence or to whom a licence has been granted. Despite opposition in this House from the Home Office, the amendment was passed and became the law of the land as Section 39 of the 1997 Act. It came into force on 1st October 1997. Four years later it has still not been implemented. The Home Office has offered one excuse after another. In April last year the House of Commons Home Affairs Select Committee, of which the noble Lord, Lord Corbett, was then chairman, stated,
- XWe are appalled that the national database . . . is not yet in immediate prospect, over two years after the implementation of the . . . Act".
The noble Lord, Lord Rooker, told me in a Written Answer dated 25th July that the firearms certificate holders' register should go live shortly after March 2002. I shall be pleasantly surprised if he can tell me that that date is still valid.
The fact is that the Home Office feels that it can decide which of the laws of the land it will comply with. It is quite happy to defy Parliament, in this case because it never wanted the amendment. What would happen to a private citizen who behaved in that way? That is one reason why I have no confidence in the competence of the Home Office.
I now turn to the weaknesses of the various official record-keeping systems, which already militate against the measures in Part 4 of the Bill to strengthen the UK's security. I take passports as an example. I have discovered that there is virtually no effective control over passports. Some 73 per cent of the UK population hold passports; that is, 43.8 million valid passports. On the death of a passport holder the passport is supposed to be handed back for cancellation. Unexpired passports of dead holders have a street value, just as stolen passports do, but it is a higher value because the death is not notified to the passport office.
Let me quote the following figures as an illustration. In the year 2000 there were 611,000 deaths in the UK—that means deaths of some 448,000 passport holders. Yet only 34,000 passports were handed in—less than 10 per cent. So I asked the Government what they proposed to do about that. The noble Lord, Lord Rooker, replied on 31st October:
- XThe Passport Service is seeking to establish arrangements to receive routine notifications of death as part of its work on improving fraud countermeasures".—[Official Report, 31/10/01; col. WA161.]
- XWe have not started to establish arrangements requiring the Government to be routinely notified of the death of United Kingdom passport holders and we have no plans to do so".—[Official Report, 14/11/01; col. WA81.]
Furthermore, I discovered that 80,000 British passports are lost or stolen each year, of which 20,000 disappear in foreign countries and again have a street value to a whole range of criminals of whom terrorists are but one example. Since the end of 1991 all British passports have been issued in machine readable form. Incidentally, even here the Home Office appears slipshod in its information. On 14th November the noble Lord, Lord Rooker, informed me in a further Written Answer,
- XThe United Kingdom Passport Service issued the last old blue 10-year passport in November 1991".—[Official Report, 14/11/01; col. WA82.]
There is at present no passport or other routine immigration control on departure from the United Kingdom, but, much worse, there is no routine
recording of machine readable passports on entry into the UK. Investigations into 11th September would undoubtedly have been helped if these had been in place.The noble Lord, Lord Rooker, tells me that the Immigration Service is urgently exploring the use of technology to require airlines to retain passport details of passengers before they board a flight to or from the UK. First of all, there is no way in which that can be enforced for passengers travelling to the UK by foreign airlines. Secondly, what about Eurotunnel? Thirdly, it is the job of the government immigration services, not the airlines, to protect our borders.
My example of passports is, of course, merely an example of the wider problem of the increasing need for state monitoring of individuals through the proper establishment of their identities. In my own mind there is no doubt that the time has come for the establishment of a proper unique identity number which the use of modern science could link in a foolproof way to the individual concerned. It would probably be useful and sensible to use the national health number which is issued to every UK citizen at birth and which is itself based on the old wartime identity card number. There is, in fact, no need for—
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