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Lord Campbell of Alloway: My Lords, I thank the noble and learned Lord. Does the noble and learned Lord, in that context, accept that the grounds—the substance of the grounds—for suspicion and belief should be made known to the person against whom the certificate has been granted?
Lord Goldsmith: My Lords, I do not accept that there should be a disclosure of sensitive intelligence information if by such disclosure we prejudice and undermine our own security. If your Lordships will permit, I shall come to that in a moment.
I venture to suggest, as did the noble and learned Lord, Lord Mayhew, that most people would accept that if a person has no right to be here; if, in addition, the Secretary of State reasonably believes that he is a risk to national security; and if, in addition, the Secretary of State reasonably suspects that he is an international terrorist, it is right to find a way of preventing that person from roaming free. Indeed, many would say that it would be remiss of the Government not to find ways to do so. That was the ultimate, hard question posed by the noble and learned Lord, with which the noble Lord, Lord Brennan, agreed. Of course, I recognise that others may take a different view, but at the end of the day, that is the dry and hard question that must be considered.
We must then consider what are the safeguards. There is no intention under the Bill not to comply fully with our obligations under the Geneva Convention.
Although the right reverend Prelate the Bishop of Manchester is not in his place—as he said that he would not be—I can assure him of that. I draw attention to the provisions in Clause 34, which simply and accurately track the obligations that exist under the Geneva Convention. Given the time, I will not read them, but I invite noble Lords to consider Articles 1(F) and 33(2). Clause 34 contains nothing that in any way undermines our obligations under the convention.What are the safeguards? First, and most important, the person who is detained can bring that detention to an end by leaving if he or others find a place to which he can go. Secondly, the provisions are temporary. The powers are reviewable after 15 months and then one year. The provisions return to this House and the other place. What is more, there is a sunset clause.
Lord Thomas of Gresford: My Lords, before the Minister continues, can he confirm that a suspected terrorist could choose to go to a rogue state? Would that be acceptable to the Government?
Lord Goldsmith: Yes, my Lords, if they will have him, because this is not a power to detain; it is an immigration power, as the Home Secretary has made clear.
Thirdly, there will be an independent reviewer, the noble Lord, Lord Carlile of Berriew. There is also judicial scrutiny by SIAC, to which I turn.
Earl Russell: My Lords, I am most grateful to the noble and learned Lord; I am sorry to intervene again. Under the powers, if the suspected terrorists were returned to another European Union country, would they risk being returned here under the Dublin Convention?
Lord Goldsmith: My Lords, this is not a secret sending-back of people. It would be done by agreement to a country which was prepared to take the person in question. Therefore, I do not believe that the issue arises.
One of the strange things about the law is its special language. I have always appreciated the fact that a company is called a Xlegal person", which rather suggests that the rest of us are somehow illegal persons. But the same is true in relation to judicial review. XJudicial review" has a special and technical meaning. It is a term of art which relates to a form of judicial scrutiny which has a limited jurisdiction.
The Special Immigration Appeals Commission procedure is a judicial review in the sense of a review by a judicial body. It is, indeed, judicial scrutiny—and scrutiny, which I want to spend a moment explaining to your Lordships, which is greater than that which would exist under judicial review. First, the commission in any hearing consists of three members. Two must be members of the judiciary—one of them must be someone who has held high judicial office (in effect, a High Court judge)—and the third must be a lay member with a good knowledge of security work. Therefore, SIAC is a judicial body.
Secondly, the jurisdiction is wider under the Bill than judicial review. Judicial review, properly understood, is a process where the court looks at the exercise (usually of a discretionary power by a Minister) and considers whether it has been exercised, for example, for a purpose not authorised by the legislation or used in an irrational or unreasonable manner. Normally the court in judicial review is limited not to substituting its own view of the merits but to reviewing the legality of the decision in that rather narrow sense. However, that is changing a little in the light of human rights legislation.
Under the Bill, SIAC will have wider powers. Under the wording, for example, of Clauses 25 and 26, which have been amended by the Government, SIAC will ask itself whether at the time it considers the question there are reasonable grounds for believing or suspecting that the conditions are made out.
It is not the case, as was suggested by the noble Lord, Lord Phillips, that in the Rehman case the Judicial Committee of this House had placed some constraints on SIAC. What was there said, and it would have applied to any judicial decision, was that certain judgments are better taken by democratically elected governments, not by the courts.
However, if one properly considers what one is asking SIAC to do that judicial review would do, the answer is that there is nothing that judicial review would do which is not going to be done by SIAC. There is one constraint and one constraint only: that is back to the issue of sensitive intelligence information which cannot be disclosed. In those circumstances, one must find some other method of ensuring that the evidence can be reviewed by SIAC.
Contrary to the suggestions that certain noble Lords have made, the European Court of Human Rights in certain of its judgments has been approving of the idea of SIAC. Indeed, in the Chahal case, to which reference has been made—I have the judgment here—bodies such as Amnesty International, Liberty and the Air Centre drew the court's attention to a similar procedure in Canada from which the SIAC procedure was drawn. The European Court made the following comment:
- XThe court recognises that the use of confidential information may be unavoidable when national security is at stake . . . In Canada a more effective form of judicial control has been developed in cases of this type. This example illustrates that there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information, yet accord the individual a substantial measure of procedural justice".
Baroness Williams of Crosby: My Lords, in circumstances where neither the defendant nor his counsel is able to hear the details of the case that is being put, under the SIAC proceedings will a summary of the evidence which is laid before the commission excluding the most sensitive intelligence information be made available to that individual and his chosen counsel?
Lord Goldsmith: My Lords, the precise process that SIAC would use would plainly have to be resolved for this kind of case. But I anticipate that SIAC would want to ensure that, within the limits of confidential and sensitive information, the person involved knew the case with which he had to deal. Plainly, there are limits. The important procedure provided by SIAC is the special advocate procedure which means that a highly experienced lawyer is engaged—not in substitution for the lawyer whom the applicant can have but in addition—to review the information and make points on behalf of the individual that he is not in a position to make himself. That demonstrates that it can certainly be done very successfully. That was why in the case of Rehman SIAC was persuaded to make an order which was, as it happens, subsequently reversed by the courts.
I respectfully invite noble Lords to consider very carefully whether they are being mesmerised by the expression Xjudicial review" and to consider whether the procedure for judicial scrutiny involving a High Court judge and special advocate procedure is a proper judicial scrutiny of the kind noble Lords have been raising.
Lord Mayhew of Twysden: My Lords, I am very grateful to the Attorney-General. I assure the noble and learned Lord that I am not being mesmerised by anything except his own skill in seeking to justify this provision. Perhaps I may ask three questions. When the Government brought forward their proposals to set up a jurisdiction for SIAC did they seek to exclude judicial review of the commission's procedures and operations? I believe that they did not. Secondly, what is the purpose of seeking in this Bill to exclude judicial review? Thirdly, is it not the case that judicial review can perfectly well handle cases that involve extreme intelligence sensitivity, and on occasions has done so?
Lord Goldsmith: My Lords, I draw the attention of the noble and learned Lord to Clause 31(3)(b) which makes sure that SIAC can hear proceedings which would, but for the exclusion, be brought in the High Court or Court of Session. The fundamental proposition is that once one recognises, as one must, the problem in relation to sensitive intelligence information SIAC deals with that problem and otherwise does everything that one expects from judicial scrutiny. It can substitute a decision, look at the circumstances, quash the Secretary of State's certificate and grant bail. The result is that in those circumstances the individual may be released from detention.
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