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Baroness Williams of Crosby: I do not intend to intervene more than very occasionally in this debate, from which I am learning a great deal. With respect to the noble Lord, Lord Rooker, I found his argument rather hard to take. One of the key issues that terrorists are concerned about is the setting aside of democratic process; indeed, it feeds the very arguments that they make. I believe that on consideration the noble Lord would agree that if there were evidence of further terrorist attacks—that is perfectly possible—this House and another place would find every means possible to get even primary legislation through Parliament extremely quickly. There would be no question of a delay of seven months. In my time in this House and in another place I have witnessed primary legislation being passed within hours, or a few days—certainly not the seven months to which the noble Lord referred.
If there is no requirement that primary legislation must be introduced again on an annual basis, it is all too probable that this measure will remain on the statute book and gradually will be taken for granted, which is exactly how liberties disappear. Liberties disappear by a process of gradual reduction, which always looks all right at the time. They finally disappear and people cease to be used to them.
I hope that the Government will reconsider very carefully their opposition to this particular amendment which has the support of the Opposition and the Liberal Democrat Benches. I have a serious fear that if terrorism begins to disappear—I do not argue that it will but it could—to allow this measure to remain on the statute book for a period of five years, with all the temptations that that offers to deal with people by an administrative and not a proper legal and constitutional method, is to take a very large risk for which there is no justification.
Lord Elton: One of the paradoxes of the fight against terrorism is that one must surrender a bit of what the terrorists are trying to take. One must lose some freedom to be able properly to resist them, and that is the subject of this legislation. That point is central to our constitution. It is essential, therefore, that it should not be taken for granted. To make one slight adjustment to the very powerful speech of the noble Baroness, there will be no need to do it in a hurry. As my noble friend Lord Onslow pointed out, one will know three years ahead, if that is the period, when the next piece of legislation is required. It can be drafted at leisure in the light of experience of the legislation that is already being operated. It takes parliamentary time. But that is what parliamentary time is for. It is for the protection both of the security of the state and the liberty of its subjects. That is what we are here for and that is what we should be doing.
Lord Rooker: The idea of having fresh primary legislation every year is not credible. That is what is being asked for.
We have derogated already for five years. The pressure on us would be enormous to reduce that. I must say to the noble Baroness that we cannot go on reducing forever. The derogation was a major step. It was not one taken lightly. I am sure that she fully accepts that. That in itself has a defined shelf life. I cannot visualise what the situation will be in five years—or ten years because there can be a further advance on that.
The noble Baroness and the noble Lord, Lord Elton, were correct. In some ways we are giving up a little of what we have in order to protect the rest. That is the price that we must pay. The basic concept is that our liberal democracy is under threat from those who wish to destroy it.
What do we do? Do we acquiesce to their demands in order to keep our principles? That would end up with us being destroyed. All we ask for is tightly controlled constitutional—I do not accept that they are not constitutional—powers of a limited duration. They will be fully scrutinised and reviewed by an independent reviewer—who happens to be a Member of this House—after 15 months and then every year.
Earlier today I offered the opportunity to have a further look at the way the Act works at that point in time. We are going up every avenue that we can to meet demands. But to have a tighter constant revolution of primary legislation would not make sense. Clearly, next week we shall debate these issues on the other parts of the Bill.
The derogation and the removal of people's liberty are absolutely and crucially important. The sunset clause in this part of the Bill is there for a specific reason. It is as well that it is there. We have put it there because, having considered the matter and listened to what has been said, in our view it is the best means of protecting our own liberties and making sure that we get legislation that Parliament can look at on a regular basis. It is not as though we shall not visit this matter again for five years. If that was the case, I would not have a leg to stand on in asking for the amendments to be rejected.
Lord Goodhart: Nothing in this group of amendments prevents the Government from getting what they want in terms of the right to detain suspected terrorists. All they impose is a duty on ourselves and on the Government to bring the matter back for further and fuller consideration within a period of 12 months. That is a small and reasonable price to pay for this extremely exceptional power to detain without trial, which may, I admit, be a necessary option in the special circumstances which now prevail. That may or may not be the case in 12 months' time.
There is nothing in the amendment that prevents the Government from bringing forward new primary legislation in 12 months' time if they feel that it is necessary to continue this legislation in force. But it has been clear from the debate today that there is a great deal that is controversial about this part of the Bill. We have had lengthy debates and very powerful
challenges to the Government over, for instance, the SIAC procedure and whether it is adequate to meet the tasks that will be placed on it. So I must say that I am deeply disappointed by the Minister's reaction.I have nothing to add to what was said eloquently by several speakers in this short debate—in particular by my noble friend Lady Williams and the noble Lord, Lord Elton. We shall unquestionably want to return to the matter later during the Bill's passage, either through pressing our amendments or, if we think it a better course, supporting the amendment that we understand that the Conservatives will shortly be tabling. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 123B to 123D not moved.]
Clause 30 [Exclusion of legal proceedings]:
Baroness Buscombe moved Amendment No. 124:
- Page 16, line 7, at end insert Xsave to review compliance with any rules made under section 5 of the Special Immigration Appeals Commission Act 1997 (c. 68)."
The noble Baroness said: Following the Second Reading debate in another place, the shadow Home Secretary consulted lawyers distinguished in the field to seek advice on whether, under the Bill as drafted, appeals on a point of law would include appeals on the point of SIAC failing to follow its own procedures. In debate in another place, my honourable friend Oliver Letwin asked the Home Secretary to reassure us that if it turns out that the ability to appeal on a point of law does not provide for appeals relating to the procedure of SIAC, the Home Secretary would immediately amend the law to ensure that such appeals were possible.
- Xexamine that matter for the purpose of clarification between now and the Bill's entry into the House of Lords".—[Official Report, Commons, 21/11/01; col. 392.]
- XThe 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".—[Official Report, 27/11/01; col. 284.]
Lord Dholakia: My Amendment No. 125 is grouped with the amendment. We are concerned about the matter of exclusion of legal proceedings. It would be helpful if the Minister would explain why no court or tribunal other than SIAC could question the actions of the Secretary of State.
Earl Russell: I should also like to touch on Amendment No. 125. Clause 32 bears a remarkably close resemblance to the words in the Foreign Compensation Act 1950, which gave rise to the case of Anisminit, of which we have heard a good deal. That is a rather unfortunate precedent. In fact, it could be described as a red rag in front of the corpse.
I should also like to respond to what the noble Lord, Lord Rooker, said about five minutes ago. He said, not for the first time, that if we are to preserve our liberties, we have to sacrifice a large part of them—we must react; we must do things. With respect, that is hypothesis; it is not necessarily fact. If he looks at the history of state reaction to terrorism over the centuries, terrorism has benefited a great deal more from the over-reaction of the state than from its under-reaction. We might all bear that point in mind.
10.15 p.m.
Lord Goldsmith: Amendment No. 124 deals with a specific point and the noble Baroness, Lady Buscombe, was right in quoting what I said at the end of the Second Reading debate. I said that in my view the better view was that the Court of Appeal would view the question of compliance with procedure in appropriate cases as a matter of law, and therefore one in which they would have jurisdiction.
I understand the point that she is making. I still hold that view but I cannot say to the noble Baroness that I have taken my thoughts on that point any further. I shall therefore invite her to withdraw the amendment today. I shall give further thought as to whether I can dispel the lurking doubt that I have left in her mind and shall return to the matter.
Amendment No. 125 is potentially more wide-ranging because that picks up the effect of the SIAC procedure. I have spent a great deal of time today dealing with aspects of the SIAC procedure. I must take issue, I hope courteously, with a suggestion made by the noble Lord, Lord Thomas of Gresford. On Second Reading I said that judicial review was an inferior procedure to deal with these problems and he described that as nonsense. I am sorry he described that as nonsense because it was not. It was absolutely right.
The European Court of Human Rights in the Chahal case stated that,
- Xthe availability of judicial review and habeas corpus to review the decision to detain Mr Chahal before the domestic courts did not satisfy the requirements of the European Court of Human Rights".
That is why the noble Lord, Lord Lester of Herne Hill—I hope that I do not misquote him—believes that SIAC was a fair compromise. It dealt with those
problems. As I said at Second Reading, the SIAC procedure, or the Canadian variant of it, was proposed by Amnesty, the Air Centre and the Joint Welfare of Immigrants Association to the European Court of Human Rights in the Chahal case. The short answer to the proposition that judicial review would be better than SIAC is answered conclusively; it is not. There is nothing that SIAC cannot do that judicial review could do.Why do we believe that SIAC procedure is better. It is because SIAC has a High Court judge, so it has the judicial element, and another judge in addition to a person with expertise in security matters and therefore can judge well and properly the security information. It has the competence already to consider two key issues: national security and immigration. Those are the issues it has been set up to deal with and those are the issues it would be required to deal with under the Bill. It was there to meet the points raised by the Strasbourg Court. I invite Members of the Committee to consider whether there is any point in setting up a specialist body of that kind and then not inviting it to do the work.
Let me pose the question in this way: let us say one went down the route of saying, XWe want to have judicial review but we accept that it is necessary to deal with the special security-sensitive information". What would the court look like then? We would start with a judicial review court which would have a High Court judge. We have that. Then we would say, XWe have to find a procedure to deal with the sensitive intelligence information. What is the best way of dealing with that? We must ensure that the tribunal has the information and that there is some way of someone testing it on behalf of the appellant if the appellant cannot see it. Let us have a special advocate. Let us ensure that there are good procedures to make sure that the applicant can see as much as possible".
Ultimately, we have the body which is SIAC. The commission is in place and it would not make sense to look for alternatives. We have in place an appeal to the Court of Appeal and appeal from there to the House of Lords. The entire judicial route is provided. As always, I understand the point made by the noble Earl, Lord Russell, but I suggest that it would be a misconception to consider that the form of judicial ouster in the Bill is unique.
The major difference between the Anisminit case, which is a pertinent case to which to refer, is that the Anisminit case stated that the decision of the Minister is final. There was no judicial review, or at least that was what was attempted in the clause. Here we do not seek to say that the decision of the Secretary of State is final. We say instead that a judicial process with a High Court judge and other specialists will review the decision of the Secretary of State, not that his decision would be final without judicial scrutiny. I shall give way to the noble Lord.
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