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Lord Mayhew of Twysden: My Lords, is there any provision in the statute that set up SIAC which excludes judicial review? I do not believe that there is. If that is the case, why is it necessary to exclude it here?
Lord Goldsmith: My Lords, I intended no discourtesy by not dealing with that question. The noble and learned Lord is quite right, but what value will judicial review on top of an existing judicial
scrutiny provide? All it will do is add time and delay unnecessarily when a perfectly good procedure is being provided, once it is accepted, as I suggest one must, that there needs to be some special procedure to deal with the fact that sensitive intelligence information is being used.
The Earl of Onslow: My Lords, perhaps the noble and learned Lord will give way. In how many other instances is any action of the Government excluded from judicial review?
Lord Goldsmith: My Lords, I would suggest that it is actually not uncommon that where there is a specific statutory right to go to a particular judicial body, it would be very unusual ever to expect that one would use the judicial review procedure in this strict sense, judicial review being the power of the administrative court to review the legality of particular actions. From SIAC the matter can then go to the Court of Appeal.
The noble Baroness, Lady Buscombe, asked whether or not a point of law could include the fact that SIAC failed to follow its own procedures. I believe the better view is that it could. So there is a proper judicial route. I respectfully suggest that the comments that have been made about a breach of natural justice and there not being proper judicial scrutiny are rather wide of the mark when one properly understands what is the procedure.
Lord Thomas of Gresford: My Lords, as the noble and learned Lord has dealt with judicial review, will he deal with the much more ancient provisions for applying for a writ of habeas corpus, which is an entirely different matter, where the person who has imprisoned or detained an individual has to justify that? Where does that fit in with SIAC?
Lord Goldsmith: My Lords, SIAC has the ability, on application, to review the Secretary of State's certificate and to quash it if it considers that it ought to do that, as set out in the Bill. It has to look at the case at certain set limits; and it can do that more frequently if there is a change of circumstances. Given the limitations because of sensitive intelligence information, that, I respectfully suggest, is a proper and satisfactory way of making sure that there is judicial scrutiny. There is no arbitrary use of power by the Secretary of State; it is subject to scrutiny by a proper judicial body.
Lord Thomas of Gresford: My Lords, does the noble and learned Lord accept that I have dealt with habeas corpus applications where public interest immunity has been claimed by the Government? Where the judge has full control of all the material, he may, if he thinks it in the interests of the applicant so to do, release it to him.
Lord Goldsmith: My Lords, the noble Lord referred to public interest immunity, as did the noble Baroness, Lady Kennedy of The Shaws, but that is a means of keeping information away from a tribunal. We are
concerned to find a way that information can be put before the commission so that it can judge whether at that particular moment in time there are reasonable grounds for the suspicion that the Secretary of State has had. PII does not solve that problem; it keeps the information away rather than finding a method of getting it before the tribunal.
Lord Campbell of Alloway: My Lords, with respect, the noble and learned Lord has not taken the point. The hour is late and we are perhaps getting tired.
The third point of my noble and learned friend Lord Mayhew was not answered. I make no complaint. Will the noble and learned Lord assume that the High Court is fully capable of dealing with these security matters—it does so in other circumstances—and that therefore there is no problem of security with this material? If that is right, why on earth do the Government want to set up SIAC to deal with such matters if it can be dealt with perfectly properly in the normal courts of the land?
Lord Goldsmith: My Lords, the noble Lord's premise, with respect, is quite wrong. There must be a way of dealing with sensitive intelligence information to enable the tribunal, when it is a court, to look at that material and judge it for itself. In order to do that, we have an experienced commission—which has a High Court judge, another judicial officer and a third person who is experienced in security matters—to look at that material. The one adjustment that has to be made to ordinary procedures is to find a way in which the interests of the applicant can be safeguarded without the applicant seeing information which it could be very dangerous for the security of the country for the applicant to see. The way that is done is by having a special advocate there to represent the interests of the defendant in that respect.
I respectfully suggest that once that is seen and understood, the arguments about the absence of judicial review become much narrower and finer than the arguments in the debate have so far suggested.
Lord Thomas of Gresford: My Lords, will the noble and learned Lord forgive me for interrupting again? It is important to resolve this matter. Is not the difference between the SIAC procedure and habeas corpus or judicial review this? SIAC will see the material and may decide that it cannot be disclosed to the detainee or applicant but may still use it towards its decision. The High Court judge, on habeas corpus or judicial review, will still see the material, because it must be produced to him under a public interest immunity application, but cannot use it unless it is disclosed to the applicant in those proceedings. Is not that the distinction?
Lord Goldsmith: My Lords, it is the distinction. But, with respect, that proves the point. If the commission cannot use the material, it cannot judge whether or not there are reasonable grounds for the suspicion. It has to set that material aside. The whole point of the
process is to make sure—I should think that noble Lords would think this the right thing to do—that there is a judicial body which is able to look at the material, even though it is sensitive intelligence material, and decide whether or not there are reasonable grounds for suspicion. That is the SIAC procedure. It involves a judge, as in judicial review; it involves a special advocate, for the special reasons that I have identified.
Lord Phillips of Sudbury: My Lords, I am sorry to keep asking the Minister questions, but this is the nub of the debate. I, for one, am very impressed by the manner in which the Attorney-General is dealing with these matters. Is it fair to summarise the position as follows? On matters of fact, SIAC will have exclusive control and judgment over those facts, because there is no right of appeal on facts; and if it acts perversely in its consideration of the relevant facts, there will be no remedy at all for the detainee.
Lord Goldsmith: My Lords, I am not sure that that is right. In a judicial review, as properly understood, there would not be a review in that sense of the facts at all. That is why SIAC is the better procedure—because it enables such a review to take place.
If your Lordships will permit me, I should like to move on. That was an important point, but I am conscious of the time that I have taken. Perhaps I may turn relatively briefly to Part 5, dealing with incitement to religious hatred.
The background to the provision is clear. Over recent months, and in particular since 11th September, we have seen that there are some people in Britain who seek to stir up hatred against members of religious groups. There have been attacks, for example, on mosques and on Muslims.
As has rightly been pointed out, the present position is that groups such as Sikhs and Jews are protected under existing legislation because, although there is a strong religious element, they are treated as constituting a racial group. That is not the present position in relation to certain other groups.
I have listened carefully to what has been said. This is an important and, for some people, difficult matter. I have listened carefully to the doubts expressed, for example, by my noble friends Lord Desai and Lord Warner. But I invite your Lordships ultimately to be particularly impressed by what was said by my noble friend Lord Ahmed and by the right reverend Prelate the Bishop of Southwark, who pointed out that it is important that this matter is dealt with. The suggestion that such provision should be delayed is, with respect, simply putting off an issue that needs to be dealt with now.
Reference was made to the Home Affairs Committee in another place. I note that the chairman of that committee, having heard the debate, said yesterday in another place that he was now persuaded that it was right to introduce such a provision. Perhaps I may identify the features of the Bill that provide protection.
The legislation will not prevent robust and sober religious debate, let alone comedy. There must be words which are threatening, abusive or insulting. There must be an intention to stir up hatred, or a likelihood in all the circumstances that it will be stirred up. XHatred" is a strong word. It goes beyond contempt or ridicule. It is not, as has been pointed out, hatred of a religion but of a group which is defined by reference to its religious beliefs. Perhaps I may add this. It is not unimportant. There will be no vexatious private prosecutions because the offence is subject to a provision that no such offence can be brought unless it is either by or with my consent. Ultimately it will be for the court to decide whether the offence is made out. I suggest that it is appropriate, necessary and proportionate at this time to include that provision. The alternative, which is to delay, is to deny the protection of this important provision to categories of people for what could be quite some time.
I turn to the other parts and shall try to deal with issues raised. Where time does not permit I shall ensure that correspondence is sent. The terrorist funding provisions largely achieved support from your Lordships. The noble Lord, Lord Hylton, was good enough to give me notice of his question. He particularly wanted to know whether or not the Bill would deal with the proceeds of illegal blood diamonds coming from various countries in Africa. The focus in the Bill is on terrorist financing and terrorist property provisions where the proceeds fund terrorism. In so far as the proceeds which the noble Lord cites are suspected to fund terrorism, the Bill will deal with those items.
Part 3 deals with disclosure of information and data gateways. Noble Lords well understand that the basic provision is to remove current barriers which prevent Customs and Revenue officers providing information to law-enforcement agencies in their fight against terrorism and other crime. It is appropriate to include it in the Bill because of the importance of dealing with that kind of information. A number of points were raised about the limits on disclosure and the judicial oversight. At this late hour I hope that your Lordships will consider it appropriate if I say that those points have been noted and no doubt we shall return to them in Committee.
On police powers, I say much the same. I say this to my noble friend Lord Ahmed. As I indicated, the police will be issued with guidance on the conduct of their powers. Such guidance will take into account the sensitivities and cultural issues relevant to those concerned. Other noble Lords, including the noble Lord, Lord Harris of Haringey, and the noble Baroness, Lady Harris of Richmond, raised the same issues. They are important points. The noble Baroness raised the question of working arrangements with the police and accountability. The noble Earl, Lord Attlee, suggested that from his experience there will not be a problem in practice about the working arrangements. Greater accountability needs to go with wider powers; and steps are being put in place to deal
with that as regards the MoD Police and British Transport Police. Again, perhaps I may leave the detail to be considered later.On bribery and corruption, there is all-party consensus that the provisions are right and appropriate. The Bill will outlaw acts of bribery by UK nationals and companies in the same circumstances as they are outlawed here. Corrupt and bad government can be seen to be a breeding ground for terrorism. I am pleased that the noble Lord, Lord Dixon-Smith, nods enthusiastically at that proposition. We cannot allow our efforts to tackle global terrorism to be undermined by ignoring the development of circumstances in which it can grow and thrive. Therefore, I hope that noble Lords will be persuaded that it is right to include that provision in the Bill at this stage. In the longer term there can no doubt be consideration of further and different provisions.
My noble friend Lord Rooker will respond to specific and detailed questions about the OECD from my noble friend Lady Whitaker and to her helpful suggestions.
The noble Earl, Lord Northesk, raised a number of issues in a letter that mysteriously is not to hand, which I will also leave to be dealt with later.
I refer finally to the Part 13, third-pillar matters. The European Communities Act 1972 already provides for subordinate legislation to give effect to our obligations under European Community law to be introduced. Matters should be capable of being dealt with that way because if one is required to deal with them by primary legislation, that can be time-consuming and will not allow the UK to respond promptly on a European Union-wide basis.
Reinforcing police and criminal judicial operations with our EU partners is a key part of our response to international terrorism. A number of important measures have been agreed and an effective way of introducing them must be provided. I say to my noble friend Lord Brennan in particular that it is not the case that criminal offences cannot already be introduced by subordinate legislation because Section 2 of the European Communities Act permits that to be done. There is a difference between that and the current third-pillar provisions—which require unanimity between member states. We are only talking about matters that are introduced as a result of unanimous agreement.
The noble Baroness, Lady Carnegy of Lour, asked about the relationship between the Westminster and Scottish Parliaments. She will forgive me if I do not enter into a debate about the relationship between the two Administrations. The noble Baroness made an important point about co-operation between Ministers. I assure her that I meet regularly with the Lord Advocate, who is responsible for the prosecution system in Scotland—as I have responsibilities in England and Wales.
I hope that the noble Lord, Lord Marlesford, will forgive me for not entering into a debate about the passport office and his national insurance number, which appears to be already the subject of detailed
correspondence with my noble friend Lord Rooker. It is right to trust the executive, subject to review—as is happening in this Parliament—to protect the people of this country.I refer your Lordships to the concluding observations of the noble and learned Lord, Lord Hoffmann, in the Rehman case:
- XPostscript. I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process".
The noble and learned Lord, Lord Mayhew, referred more than once to trusting in these circumstances. I invite your Lordships to accept that all the proposed measures are appropriate to deal with the unprecedented situation in which we find ourselves.
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