| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord McNally: The Minister has conceded that the paragraph is very wide, but he pleads with us to believe his honourable intentions. Nobody doubts his honourable intentions, but there is the opening for a cat and mouse act here. The Minister has previously put a lot of emphasis on the responsible role that SIAC is going to play, yet the Bill leaves a blank cheque for the Home Secretary of the day to defy or ignore SIAC.
Amendment No. 121 may not be absolutely right or drawn widely enough, but it at least goes in the right direction. Perhaps on Report we could secure an amendment that would allow the Home Secretary to take on proper changes in circumstances but gave him something less than a blank cheque.
The Lord Bishop of Portsmouth: I hope that the Government take on board what the noble Earl, Lord Onslow, and the noble Lord, Lord McNally, have just said and think again.
Lord Rooker: I do not accept the description of the noble Earl, Lord Onslow, although I understand his concern. We share that concern in a way. We have spent some time looking at the issue, particularly in view of the comments of the Human Rights Committee. We are conscious of the efforts that have gone into that Joint Committee of both Houses and we take it very seriously.
As I have said already, without any commitment, we are continually looking at the Bill during its passage—at the issues that we have already dealt with and at the issues that are still to come before the Committee. We are constantly reviewing our decisions. We have had a look at the issue already, but we shall not stop doing so. If we can find a way to meet the desires of the Select Committee, we shall certainly do so. We have not stopped working on the clause. For tonight, I ask the noble Lord to withdraw the amendment but I assure him that we shall continue looking at the issue.
Lord Thomas of Gresford: There are none of the Minister's examples that could not have been encompassed in the words set out in Amendment No. 121, because a Xchange of circumstances" means exactly that. Fresh evidence would be a change of circumstance. Amendment No. 121 does not ask for too much. I welcome the Minister's assurance, but we shall certainly return to this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 122 and 123 not moved.]
On Question, Whether Clause 27 shall stand part of the Bill?
Lord Campbell-Savours: Over the past three days, I and many other Members of the Committee have spent about 16 hours listening to debates and wanting to intervene. I have sought not to do so except on this narrow issue.
From those debates and comments outside, it seems that SIAC's integrity is most important to the Bill's implementation. I tried to find out about SIAC's operations since it was established in 1997. Little material is available in the public domain, apart from the Report of the Review of Tribunals by Sir Andrew Leggatt which deals with a number of aspects of SIAC's operation and how the tribunal's practices and procedures have been reviewed for conformity with the European Convention on Human Rights and to meet any particular concerns. The report says that the commission was set up in response to criticism of the Government by the ECHR.
Debates in this House and more widely have included discussion of whether there is some deficiency in the procedures, particularly in respect of the special advocate. A person making appeal may not feel that their case is being adequately heard. On 29th July 1998 the Lord Chancellor stated:
- XThe special advocate will see all of the Secretary of State's material. He will be able to test it; for example, by cross-examining witnesses. He will be able to make representations to the commission; for example, about the material to be withheld from the appellant. He will not, however, be able to communicate with the appellant as a representative normally would".
That is obviously the basis of the concern that has been expressed. The Lord Chancellor continued:
- XThere is a risk of inadvertent disclosure through an apparent innocent remark".
That is the explanation given by the Lord Chancellor. He went on:
- XHe will be able to apply to the Commission to seek specific information from the appellant".—[Official Report, 29/7/1998; col. 1588.]
It is difficult to understand why,
- Xinadvertent disclosure through an apparent innocent remark",
I felt there might be room for compromise on that principle. Surely there are lawyers who are capable of having direct contact with the people they are representing for the purposes of the tribunal.
I move on to what the Lord Chancellor said at col. 1589:
- XWe have imposed on the Secretary of State the requirement to notify the Attorney-General of the potential need for the appointment of a special advocate at the time he decides to oppose the appeal. In that way, the special advocate will have the maximum time possible to communicate freely with the appellant. Once he has received the Secretary of State's material, the special advocate's access to the appellant will be restricted, but he will be able to apply to the commission for authority to seek information, in connection with the proceedings, from the appellant or his representative".
We come back to the same point. Why should contact be restricted? If that person can be trusted not to reveal information which is sensitive to national security, why should not that lawyer have full access to the appellant in that particular case?
Finally, we have been told—indeed I read in a number of documents and the secretary of the commissioner said—that information relating to membership of the commission is confidential. In reality the chairman of the commission is known; it is in Whitaker's Almanack. Indeed, I think it was referred to earlier in today's debate. Therefore, in so far as the name of the chairman of the commission is made public, is there some other reason—apart from the case of a person who has knowledge of security matters—why the name of the person from the immigration appellate body should not also be made public?
Lord Thomas of Gresford: I support the noble Lord's criticism of SIAC. He puts his finger on a very important point.
When the special advocate appears before the commission, he will be given access to all the material that the commission will see. The secret material will, I imagine from my own experience, consist of telephone intercepts, surveillance records and so forth; and possibly informers, though I would be surprised if the names of the informants are revealed to anybody. That is the sort of information that is held close to the chest.
The submissions that will be made to the commission will be, on the one hand, from the advocate on behalf of the Home Secretary, saying, XLook at all this. He did this. He did that. He did something else. And because he did those things we have a suspicion that he is a terrorist". The special advocate will be in the unique situation of being unable to go to his client and say, XLook, it is said that you were in such-and-such a place on this day; that you were talking to a well-known terrorist; that you received a letter from somewhere else". He will not be allowed to ask the client where he was, so the client could say, XNo, that is wrong. I was somewhere else. They have got the wrong person".
There are no proceedings before a court of law in this country where the advocate cannot represent his client by taking instructions from him. It is the basic principle of audi alteram partem; how on earth can the tribunal hear the other side of the coin if the person concerned does not know what the case is against him?
Since the 17th century the courts of this country have protected the identity of informers, long before the telephone or cameras were invented. That was something that was traditionally secure: never reveal the identity of informants. The courts have dealt with that for centuries. The courts have dealt with telephone intercepts, surveillance and matters which might reveal the methods of the security services. That is what they are concerned about. They have dealt with that in trial after trial. Noble Lords who heard the speech of the noble Baroness, Lady Kennedy, were listening to perhaps this country's most experienced advocate in terrorist trials. I cannot think of anyone who has had more experience in this area. She will have been dealing with such matters all the time. She comes to a firm view. My experience of terrorist trials is less although I have some, and I have a clear view as to how the identities of informers and the methods of the security services can be and are protected.
We have here a system which the noble and learned Lord the Attorney-General said recently was better than judicial review. That is nonsense, but we reserve that for later. I am amazed that the Government claim that a system whereby the advocate cannot take instructions from his client to controvert the facts and prepare his argument is better than the present system.
9.30 p.m.
The Earl of Onslow: It is ironic. I hope that I am right on this. If the man is charged and there is enough evidence against him for the Crown Prosecution Service to think that it can lock him up, he has the right to see the evidence. He has the right to instruct an advocate. However, if the Crown or the Home Secretary does not have enough evidence to lock him up, he does not have the right to see the evidence. That strikes me as being very odd.
Next Section
Back to Table of Contents
Lords Hansard Home Page