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The noble Lord said: In moving Amendment No. 104, I intend to accept Amendment No. 104ZA, which, although tabled by me, is to be moved by the noble Earl, Lord Russell, as it is not possible for me to
This amendment, as amended, would ensure that the substance of the grounds on which a certificate is issued by the Secretary of State would have to be made known to the person concerned, excluding any sensitive intelligence material for which a claim to privilege from disclosure would be made.
It would also ensure that all documents, materials and information on which the Secretary of State issued the certificate—the full grounds, whether or not subject to a claim for disclosure—should go before the judge on judicial review to decide whether the belief or suspicion of the Secretary of State under Clause 21 could have been reasonable; if not, to quash the decision or, as is often the practice, as the noble and learned Lord will know, to remit to the Secretary of State for further consideration.
The noble and learned Lord will also know that about six years ago there was a case in the European Court of Justice where there was no such review of the merits and no disclosure such as would have been ordained under the amendment. The court found that judicial review failed to provide adequate safeguards for the right of liberty in cases of deportation involving security.
I mention that at the outset because that case, which the noble and learned Lord will know, is wholly distinguishable and would not apply to the regime as proposed by the amendment under which the judiciary retains its constitutional function to contain abuse of power by the executive. The amendment is dependent upon retention of judicial review and habeas corpus. It requires that Clauses 30 and 31 do not stand part of the Bill. Having spoken to that on the amendment, by leave of Members of the Committee, I shall not speak to it again when it is moved.
The Attorney-General (Lord Goldsmith): I thank the noble Lord for giving way. As he rightly says, the question of the suitability of the SIAC review compared with judicial review forms part of a further grouping. I wonder whether it would be for the convenience of the Committee to deal with those matters together and to deal at this stage with that part of the noble Lord's amendment which relates to the provision of information which would then form the basis of either judicial review or SIAC. I simply put that before the noble Lord for consideration. I do not insist; I am in no position to do so.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord. I shall do anything that is for the convenience of the Committee. I thought that it would save time if I dealt with both amendments together. Amendment No. 104ZA will be moved by the noble Earl, Lord Russell. It is easier to deal with both at the same time as everybody has the Marshalled List and the supplementary list.
The object will be that this essential requirement of natural justice will be fulfilled; that a decision of the executive, albeit on reasonable suspicion and belief, should be taken on grounds that are made known to the person affected by the decision. An examination of the adequacy of such grounds by the High Court is the essence of judicial review in this context. As the sense of this House, as expressed in Committee, was in favour of retention of judicial review, the substance of such grounds must be given. In the absence of such grounds, or any reason made known to the person affected, the High Court would quash the decision. The purpose of the amendment is to ensure, as I have said, that the substance of those grounds is made known to the person affected and is adequate to support reasonable belief and suspicion entertained by the Secretary of State.
It has not yet been understood by the noble and learned Lord, Lord Goldsmith, that it is not proposed that the grounds should disclose sensitive intelligence information which would prejudice and undermine security. One has only to refer to the exchanges initiated by me in Committee at cols. 280 and 285—I am grateful to the noble and learned Lord for his responses—to see that there was a clear misunderstanding as to the intent of my amendment. I hope that that misunderstanding will be clarified by the amendment to be moved by the noble Earl in due course.
As I have said before, it is wholly accepted that the certification under Clause 21(1) as amended in another place is requisite to detain and inhibit the propensity to roam and is a legitimate executive act taken on sensitive intelligence information, which must not be disclosed to anyone other than the High Court judge or judges on judicial review.
The information for which privilege from disclosure would be claimed under the amendment to be moved by the noble Earl would be handed to the judge to read, usually in his room, no doubt by an intelligence officer who had the file. The judge would give his ruling in open court. The High Court, as the Attorney knows well but the Committee does not, is wholly accustomed to dealing with claims of privilege from disclosure on grounds of national security. The grounds to accompany the certification would not disclose such material. They could merely refer to documents, information and material not disclosed for which a claim for privilege would be made.
My noble and learned friend Lord Mayhew of Twysden was concerned about the drafting of the amendment in the context of security, of which he has personal expertise as a former Secretary of State and Attorney. To meet that concern I had discussions with him to ensure that sensitive intelligence information was not disclosed in the written grounds which accompany the certificate to be served on the person so certified. I am grateful for the advice of the noble and learned Lord, who has not seen this draft, that in its original form this was perhaps too widely drafted. I commend this to the Committee in principle so that,
I am extremely grateful to the noble Lord, Lord Thomas of Gresford, for producing SIAC's rules of procedure. I do not propose to refer to them in any detail, save to explain that in the context of what is in effect a denial of justice it is the in-house special advocate who makes submissions to the commission in proceedings from which the appellant and his representatives are excluded. He cross-examines the witnesses in such proceedings, identifies points of law on appeal from SIAC and makes written submissions. But he may not communicate any of the information that he has about the grounds and material before the Secretary of State directly or indirectly to the appellant or his representative on any matter connected with proceedings. That is a most curious form of administration in a context for which it was not originally designed. It was designed for a totally different purpose. The Committee may well consider that to be wholly unfair, unsatisfactory, contrary to our concept of natural justice and no substitute for the safeguard afforded by judicial review. For that reason, it is essential that the jurisdiction of the High Court should not be excluded. I beg to move.
Earl Russell moved, as an amendment to Amendment No. 104, Amendment No. 104ZA:
The noble Earl said: I beg to move Amendment No. 104ZA. I discussed this amendment with the noble Lord, Lord Campbell of Alloway, in general terms very late last night. The reason I did not put my name to it this morning was that my mind was momentarily on my job; otherwise, it would certainly have appeared in my name. I fully support that amendment and Amendment No. 104 which goes with it.
In Clause 21 we are concerned with one of the most difficult areas of the whole Bill. I refer to a conflict between right and right. I entirely understand why the Government want the clause. As the Minister put it in reply to the previous amendment, we do not want people who are a threat to our security and cannot be returned anywhere else to be at large on our streets and free to do any evil that they wish. I understand the Government's problem in that regard.
I also understand extremely well the difficulty of revealing sensitive security sources. On occasion that may involve a risk to life. That point is dealt with most clearly in Amendment No. 104ZA. When there is a leak, usually one does not track down exactly who has done it; one arrives at a short list of three or four, any one of whom might have done it. In certain criminal and terrorist organisations the emergence of that information may lead to the death of all four of those
We are discussing here the question of how to choose the lesser of two evils. If there is any way in which this circle can be squared, which is what the amendment seeks to do, I believe that it should be tried. The general framework in which I seek to place the amendment is that set by the very interesting Second Reading speech of the noble Lord, Lord Brennan. He said nobody suggested that these people should be left at large but one wanted what was done to them to be under proper judicial protection. That can be only if there are reasons, known at the very least to the judge, which explain exactly why they are being detained.
In a case which occurred seven years before Magna Carta, King John arrested one of his barons. He gave as the cause for the imprisonment—I shall give the Latin so that Members of the Committee can check my translation if they want—quod super eum irate fuimus: because we were cross with him. That is something to which no judicial response can be made. It is essential to any judicial proceedings that there should be a charge which is capable of answer.
The other point about detention without cause shown is that it goes on longer than the terrorist threat. The noble Lord, Lord Corbett of Castle Vale, made the point that it may last indefinitely. But, what is more, it may remain on the statute book for decades, even centuries, after the need which gave rise to it.
It is, I think, well understood that judges are capable of hearing the most sensitive information with total confidentiality. I have with me a letter from the noble and learned Lord, Lord Donaldson of Lymington. He regrets that he is unable to take part in this stage of the proceedings on the Bill because he was already committed to be abroad. I shall not refer to the rest of it because it deals with the issue of judicial review. I accept what the noble and learned Lord the Attorney-General has said about that.
However, he draws my attention to one occasion when he held a judicial review case entirely in camera, not for security reasons but for financial ones. The consequences of the information coming out before the case was concluded could have been disastrous. That worked. I believe that our judges can be trusted in that kind of situation. They certainly have been in the past. I am not aware of any cases where we have been let down.
The amendment proposes that a clear statement of the reasons should be given to judges. It provides for the judicial review procedure. That is important. I shall say no more about that. So it does a good deal to alleviate the problems created by Clause 21.
I shall not say that it removes them because I shall mention one more problem which concerns me, in the hope that someone in the House has the wisdom of seeing a way to tackle it. That is the problem of communicating the reasons to the suspect. I can see very grave difficulties in communicating reasons to the suspect. I entirely understand why the Government are uncomfortable about it—because they also may work out where the information came from.
On the other hand, the maxim that we must hear both sides is a fundamental part of natural justice. Although a lawyer and a judge may hear the information, if the suspect cannot it may be extremely difficult to answer it. In the words of the noble and learned Lord, Lord Ackner, in the case of Ridge v. Baldwin, what appears to be a man dead drunk in the gutter may in fact be a diabetic who has run out of insulin. If anyone can think of a solution to that problem I shall listen to it with great interest. I confess that I do not have one. However, if the amendment were adopted I believe that the clause would be very much better than it is at present. I beg to move.
X(1A) Any certificate issued under subsection (1) shall be accompanied by written grounds on which the belief or suspicion of the Secretary of State is reasonably entertained, which shall be subject to judicial review in the High Court."
Line 4 of the amendment, after Xentertained" insert X(without documents, materials, or information for which privilege from disclosure will be claimed on grounds of national security)"
XI sat next to the Duchess at tea,
It was just as I feared it would be.
Her rumblings abdominal were simply phenomenal,
And everyone thought it was me".
Granted that these evils need to be remedied, it is also true that detention without cause shown is an evil and has been recognised as such in English law for as long as that law has existed.
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