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Lord Avebury: Perhaps I may ask a question that has been troubling me as I have listened to the debate and most of the one before it. That is, let us suppose that one has an individual who has been before the courts and who has been convicted of an offence under the Terrorism Act 2000. The Secretary of State decides when he has reached the end of his sentence that it would still be a threat to our security to have him at large on our streets—as the matter was put by my noble friend Lord Russell. Would he then be able to issue a certificate on the basis that the man was plainly a terrorist having been convicted in the courts? Furthermore, would that not be subject to judicial review when everyone knew what the reasons were?
5.45 p.m.
Lord Goldsmith: I am happy to speak to the amendment as amended by the further amendment. There are two broad issues: first, the reasons for issuing a certificate—I shall deal with that and the different elements of the amendments; and, secondly, the question of the availability of judicial review. When I intervened in the speech of the noble Lord, Lord Campbell of Alloway, I was simply indicating that that general issue arises under Amendments Nos 124 and 125 and Clause 30 stand part, which have been grouped together. I am entirely in the hands of the Committee as to the right way to deal with it.
I first deal with the question of the reasons. It is important to note that Clause 27(6) of the Bill applies the provisions of the SIAC procedure rules to any,
- Xappeal, review or application which is made under sections 25 or 26".
Rule 10 provides that where there is an application, or appeal as it is at the moment, to SIAC the Secretary of State is required to submit to it a summary of the facts relating to the decision being appealed and the reasons for it. He has to inform the commission of the grounds on which he opposes the appeal and to provide it with the statement of the evidence which he relies on in support of those grounds. That first step deals, I hope, with the point made by the noble Earl, Lord Russell, which I entirely accept, that it is important that the judicial body which is scrutinising and reviewing—SIAC in this case—knows the basis on which the Secretary of State made his decision. Therefore, that information has to be provided to SIAC under the rules as it stands.
As the noble Earl, Lord Russell, said, there is a real issue that then arises. The issue that arises is that that may very well, and indeed is likely to, include some sensitive intelligence information which, for the reasons that he has given, it simply is not appropriate, without compromising national security, for the particular applicant to receive. I was grateful that the noble and learned Lord, Lord Mayhew of Twysden, with his great experience, having held the office that I am now privileged to hold, certainly seemed to accept that the other day, as did other Members of the Committee.
In those circumstances, the SIAC rules provide quite a convoluted but, I hope Members of the Committee will agree, a very satisfactory procedure for dealing with that situation. They involve various steps. The material from the Secretary of State will be passed by SIAC to the applicant unless the Secretary of State objects on the grounds of national security, or such like. If he does, the special advocate procedure is then invoked.
In response to a point raised by the noble Lord, Lord Campbell of Alloway, the special advocate is not properly characterised as an in-house lawyer. He is not a SIAC lawyer. He is an independent lawyer who is chosen from a list of experienced counsel. They are vetted so that they can see security information. His job is not to act for SIAC but to represent the interests of the applicant. Indeed, he is on a list which is held by my office, which identifies proper and appropriate people who are independent and who will do the job.
That person then sees all of that information, and there may then be a dispute about whether some of it should be provided to the applicant. The commission can consider that under SIAC's Rule 11. The rule
states that, having considered the Secretary of State's objections, and having heard oral representations from the special advocate, the commission may be minded to overrule the Secretary of State's objection, or require him to provide material in a different form from that in which he has provided it already.The effect of that is that the commission can conclude that, notwithstanding the objections, the information ought in fact to be passed across, or passed across in a different form, which may permit the provision of material in the form of a summary or gist that does not give rise to a problem with national security.
If the Secretary of State does not like that, he may simply not be able to rely on that evidence. That may be a problem for the Secretary of State, but I hope that the Committee will agree that that provides the answer to the problems that have been identified.
In summary, the appellant will have access to the information relevant to the Secretary of State's decision that is disclosable. He will not have access to sensitive information, but that will be available to the special advocate and, as I explained, the commission can require further information to be provided in a different form.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord, because it is perhaps easier to take the point in the context now, rather than leave it until later.
There is no obligation on the Secretary of State to give any grounds; it is purely discretionary. Can the Minister point to any obligation on the Secretary of State, or is it purely a matter for his discretion?
Lord Goldsmith: No, it is not. I mean no criticism by drawing the noble Lord's attention to Rule 10. That states:
- XIf the Secretary of State intends to oppose the appeal, he must"—
- Xprovide the Commission with a summary of the facts relating to the decision being appealed . . . inform the Commission of the grounds on which he opposes the appeal; and . . . provide the Commission with a statement of the evidence which he relies upon in support of those grounds".
Lord Campbell of Alloway: How can the man form any sane and reasonable notice of appeal until he has been given really full information of the grounds upon which the decision has been made? This is what I find difficult to understand.
Lord Goldsmith: With respect, I do not think that that is so difficult to understand, for this reason. We are talking about a situation in which the Secretary of State has resolved that a certificate should be issued, with the effect that a person is then detained. Under
those circumstances, I do not find it difficult to imagine that the immediate reaction of the person detained will be to take the Secretary of State's decision to SIAC to have its basis tested. That will immediately invoke the procedure.
Lord Neill of Bladen: Perhaps the noble and learned Lord could deal with a difficulty. We are continuing a dialogue that began on Monday night. I have what is really a probing question about the special advocate. In the ordinary way, an advocate, in making a submission or representation, is acting on instructions from a client. The special advocate will, as I understand it, not be in that position. He will be seeing material in the commission's possession that the accused—or whatever one cares to call him—will not have seen. The special advocate will have to address submissions to which his Xclient" may have an answer, but without knowing that answer because he has not been able to take instructions.
Lord Goldsmith: Of course I understand the noble Lord's point. I have used the words used by the noble Lord, Lord Lester of Herne Hill, in the debate on the derogation order earlier this month. He said that he regarded the SIAC procedure as a fair compromise. It is a fair compromise between the desire to ensure that the judicial body is in the best possible position to judge whether or not the certificate, and therefore the detention, is right and the need to avoid compromising national security by providing that information to the applicant. As the noble Earl, Lord Russell, said, that may give rise to most serious risks.
The noble Lord, Lord Campbell of Alloway, referred to a European decision made about six years ago. I should be grateful for his confirmation, but I think that he was referring to the case of Chahal.
Lord Campbell of Alloway: I was.
Lord Goldsmith: I am obliged to the noble Lord for that information. The case of Chahal was the case that resulted in SIAC being set up, because the then procedure was, as the noble Lord rightly says, held to be inadequate because it did not provide the best opportunity for a judicial body to consider the material.
As I mentioned in my winding-up speech on Second Reading, the European Court of Human Rights drew attention to the existence of a Canadian model that it thought would solve the United Kingdom Government's problems. The Canadian model is the SIAC model. That is what was introduced as a result of the European Court of Human Rights saying that we could at least have something involving a special advocate procedure and a means of ensuring that material was considered. In the words of the noble Lord, Lord Lester of Herne Hill, whose views on such matters are of enormous influence and value, that is a fair compromise. As I understood it, he supported the SIAC procedure when it came before Parliament.
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