| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Corbett of Castle Vale: Will the Attorney-General help me because I want to make sure that I have understood the position? As he will probably know, I am deeply dissatisfied about the absence of judicial review, but we shall return to that matter later. Has the noble and learned Lord just told the Committee that someone who has been charged, convicted and sentenced under what we will call Xdomestic" terrorism laws, in circumstances at the end of that sentence could then be pounced upon under the powers of this Bill? If that were the case, I should regard it as an absolute abuse of those powers.
Today, the Attorney-General has been at great pains, as he was on Monday, to tell the Committee that the only reason the Bill is needed is because there is insufficient evidence on which to take a case to court. Have I misunderstood what the Attorney-General has said?
Lord Goldsmith: I want to make three points in answer to my noble friend. First, I was responding to a hypothetical question that was being put quite fairly by the noble Lord, Lord Avebury. I was not indicating that that was the situation I envisaged behind the principal purpose of the Bill. Secondly, in circumstances in which someone who does not have a right to remain here has been convicted of a serious offence, the normal course would be that the court would, in any event, order deportation. The problem is that even at the moment a person who is ordered to be deported by the court sometimes cannot be—and cannot be because we are not prepared to send him back to a place where they will be killed, executed or tortured. We have exactly this problem at the moment where a court of law has said that someone should go, but we will not let that person go because we respect their human rights. However, I suggest that we cannot allow them to roam free in our society if there are reasonable grounds for believing that they will commit terrorist acts that would gravely damage the people of this country.
With due respect to my noble friend, I do not consider that response to suggest in any way that there is an abuse here. Rather, I suggest that it demonstrates the limited nature of this part of the Bill. It deals with immigration controls and with the situation where
there is a right to deport someone not entitled to be in this country but in respect of whom, as verified by a judicial body, reasonable grounds have been established to believe that he poses a threat to our national security. Nevertheless, we could not deport him because we have regard to his right not to be sent back to a place where he may be killed or tortured.
Lord Maclennan of Rogart: Before the Attorney-General finally resumes his seat, perhaps I may ask him why he is not more responsive to the suggestion put by my noble friend Lord Russell that the requirement to disclose the grounds for the decision which lead to certification should be placed on the face of the Bill. However, the Attorney-General is right to invoke the name of my noble friend Lord Lester of Herne Hill, whose judgment in these matters I, too, very much respect.
I understand that my noble friend Lord Lester suggested that what was being proposed was a compromise. He did not suggest that it was a compromise incapable of further improvement. That is particularly the case in light of the consideration expressed by the noble Lord, Lord Neill of Bladen, regarding the limits of the role of the appointed advocate. It appears that, when reconsidering a review of the decisions reached by the Secretary of State, SIAC would be unlikely to come to a different conclusion, not only because of a natural sensitivity to the view of a responsible Secretary of State, but also because SIAC would not be able to hear from the subject his response to the case that has been made against him. If he is not able to communicate the charge or the circumstances surrounding it, then he cannot properly be informed to discharge the job of representation.
It is not a slight matter as to whether the requirement to disclose reasons is on the face of the Bill. It is very central.
Lord Goldsmith: The obligation to provide not only the reasons but also the material relied on by the Secretary of State to the commission and thenceforward to some extent to the applicant—I shall return to that point in due course—is included on the face of the Bill. It has been put into the Bill that the SIAC rules should apply, and those rules require that such information should be provided. No ambiguity whatever surrounds that point. Indeed, that was the point I sought to make in response to the noble Lord, Lord Campbell of Alloway.
Latterly I have sought to deal with a single and slightly different point; that is, whether at a slightly earlier moment in time the Secretary of State would undertake to provide a form of summary before the full information is provided as required by the statute. That is fundamental because, at the time when the appeal is brought, the Secretary of State is obliged to bring forward his case to SIAC. The only problem here is whether a part of that case could not be provided to the applicant because of sensitive issues of security. In those circumstances the fair compromise—I use again the words of the noble Lord, Lord Lester—is to do the
best one can. The information could not actually be given to the person involved because the sources who originally provided the information could then be threatened with death or perhaps the methods of surveillance would be discovered and thus rendered incapable of further use to protect the people of this country.The fair compromise reached in the Chahal case and taken from the Canadian experience is the special independent advocate. He will be able to communicate with the applicant, although he cannot reveal any sensitive information that he may been given. That would defeat the object. I shall read out the details of his function, which are set out under Rule 7.4:
- XThe function of the special advocate is to represent the interests of the appellant by—
I stand absolutely by the comments I made the other evening. This is not a poor substitute for judicial review; it is better than judicial review. The noble Earl referred to the case heard by the noble and learned Lord, Lord Donaldson of Lymington, where evidence was heard in camera. I assume that that was a situation where the applicant was also present in camera because he was privy to the information. As I said in response to the noble Lord, Lord Thomas of Gresford, the customary situation in the courts is that the only way in which sensitive information may be dealt with is for the courts to decide not to rely on it; they have no procedure in place to use such information without the applicant also seeing it. SIAC provides a way of achieving that objective.
The Earl of Onslow: The noble and learned Lord has concentrated, quite reasonably from his point of view, on the degree of protection that would be conferred by the use of these powers. Can he give the Committee a specific example of something that either would or would not have happened without the use of the new powers?
Lord Goldsmith: I thought that the noble and learned Lord, Lord Mayhew of Twysden, put it very clearly in our previous debate when he asked what people would think of the Government if we had known that someone was roaming around who posed a threat, was potentially or actually planning terrorist
The Earl of Onslow: I have not asked the Attorney-General to repeat what was said by the noble and learned Lord, Lord Mayhew of Twysden; I have asked a specific question. The Attorney-General has advanced his argument and I think that the Committee is entitled to an answer.
Lord Campbell of Alloway: I am grateful to the noble Earl for allowing me to interrupt. However, does he not agree that perhaps we ought to get on with the amendment?
For reasons of economy, I shall not take long to make my remarks, but I should say that I have no intention of withdrawing the amendment. A fundamental principle is at stake in this which has not been addressed; that is, the question of judicial review. There it is, included in the amendment in black and white. I do not refer to SIAC but to judicial review. We have not even entered into the essence of that discussion, save that put forward with the assistance of the noble Lord, Lord Neill of Bladen, whose intervention was of crucial consonance on one aspect. To put it in simple terms, the representation of the client does not accord with the full requirements to which we are accustomed. Here I synthesise the noble Lord's argument. Furthermore, it does not accord with the way in which justice is administered on judicial review, and so on and so forth.
As I have said, there is certainly no question that the amendment will be withdrawn. I concede that there is no sense in playing with the concept put forward by the noble Lord, Lord Lester of Herne Hill, because I do not regard justice as administered on judicial review or by the High Court as a form of compromise. It may be that commercial arbitration is, but not justice administered on judicial review.
Whether or not it is fair as a compromise is totally beyond the point. I am concerned—and no one has said why it should be done—that the Bill excludes the jurisdiction of the judiciary in this area. I shall read and study, as a matter of courtesy and enlightenment, what the noble and learned Lord and other noble Lords have said today, and I shall come back to the matter on Report. I beg leave to withdraw my amendment.
(a) making submissions to the Commission in any proceedings from which the appellant and his representative are excluded;
(b) cross-examining witnesses at any such proceedings;
(c) making written submissions to the Commission".
I recognise that that may be a second best approach, but it is the best that can be done in order to balance the need to protect sensitive security information against the need for SIAC to be given the best possible means of being able to judge whether the grounds on which the Secretary of State reached a decision were justified.
6.15 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page