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Lord Goodhart: I am grateful to the noble and learned Lord. Is not the flaw in his argument that of treating the SIAC procedure and judicial review as mutually exclusive? I know what has been said by my
noble friend Lord Lester and I believe that he is most likely to be right in this; namely, that with judicial review, 99 times out of 100 the answer from the court will be, XWe are not going to review your case because we think that the proper course is for you to go to SIAC". However, perhaps in only one out of 100 cases judicial review would have a role to play. What is the justification for excluding judicial review and for setting a precedent here, which is an extremely important feature, by going to the length of actually removing the right of judicial review in statute? Why not simply leave it in place?
Lord Goldsmith: I hope that the debates which have taken place on Second Reading and in Committee yesterday and this evening may have indicated that in what was quite an emotional argument about the absence of judicial review implying the absence of judicial scrutiny was in fact a misplaced concern. I do not seek to make a criticism because I entirely understand how it has come about. However, that is not the point, and the purpose of our debates is to try to clarify any misunderstandings and to recognise the real issues.
Lord Neill of Bladen: I should like to intervene on a minor point. The noble and learned Lord the Attorney-General is usually so accurate in all his statements that when he makes a not entirely accurate comment I venture to point it out. I think he said that there was a distinction between the Anisminit case and this one, in that it referred to the decision of a Minister not being called into question. On the contrary, it did not do so. It comprised exactly the same language as we have here. Rather, it was the decision of the Foreign Compensation Commission which could not be called into question. Thus it is an exact parallel to the position in the case before the Committee.
Lord Goldsmith: I am grateful to the noble Lord for reminding me of that point. Does the noble Earl wish to intervene?
The Earl of Onslow: I wished only to observe that when lawyers say that they are Xgrateful" for an intervention, basically what they mean is, XOh bother, he has caught me out. I have fallen hook, line and sinker". That is what caused me to laugh.
Lord Goldsmith: When I wish to use such language, the noble Earl should not worry, it will be clear that that is what I am saying.
I am anxious that the debate should proceed on an entirely accurate basis and thus I am grateful for the noble Lord's clarification. I do not think that there was an appeal from the commission to the Court of Appeal. To that extent it is right that here there is a route from the commission to the Court of Appeal. In that we have a wonderful result for the lawyers; both of us are right to some extent—the noble Lord entirely and I at least in part.
But the essential point is this. No one has yet pointed out, once one looks at what SIAC actually does, what it is that judicial review would add. I have not heard anybody suggest something that judicial review would actually add. SIAC will do all that judicial review would do, and more. I make that point to emphasise its ability to review facts in a way that judicial review does not.
Lord Marlesford: Surely what we are in a way talking about is the appearance of justice. There may be few cases in which this will apply, but people are somehow uneasy that the new procedures will exclude the traditional procedures which are seen as a safety net for justice.
Lord Goldsmith: I invite the Committee to look upon it as a specialist court. We have other kinds of specialist court which do a good and better job. This court was set up precisely because the judicial review procedure and, indeed, the habeas corpus procedure, did not provide an adequate safeguard in the Chahal case, so said the European Court of Human Rights and, indeed, the Xthree wise men" procedure that we had at that stage. The matter can go to the Court of Appeal; it can go to the House of Lords. That is the point.
I hope that the debate has demonstrated that there is not anything that judicial review would add and, instead, that judicial review would not be as good as this.
Lord Phillips of Sudbury: I thank the noble and learned Lord for giving way. It is not fair to say that the debate has demonstrated that there is no role for judicial review. All that the debate has demonstrated is that no one sitting here tonight can give a clear-cut case where it might be relevant. As my noble friend Lord Goodhart said, it would be a foolish person who said that in no circumstances could it be relevant.
If the Attorney-General is right, leaving the normal provisions and protections in the Bill will damage no one; it will cause no obstruction to the intent of the Government or to the Secretary of State in future times. But if it is the case that the occasion arises where judicial review becomes relevant, the traditional remedy is there.
The noble and learned Lord is in a logical impasse in arguing as he does that, XThere is absolute certainty that judicial review is not necessary but we insist on retaining the clause in the Bill". If it is absolutely unnecessary, why do we need the clause?
Lord Goldsmith: I am talking about the reality of the situation. I hope that I have persuaded noble Lords of the merits of the SIAC procedure. I will never persuade the noble Earl, Lord Onslow, but that is a cross I shall have to bear.
I invite noble Lords to consider that judicial review will add nothing; no one has shown that it will add anything—except possibly this: it will give the ability
for delay and expense, which will assist no one. That is all the debate, I respectfully suggest, now comes down to.
Lord Thomas of Gresford: Perhaps I may follow the noble Lord, Lord Marlesford, in what he said about the public perception of these proceedings. The writ of habeas corpus is a prerogative writ; that means that it is in the name of the Queen. That is why proceedings are called XRegina against the Secretary of State ex parte on the application of X". Judicial review is the same inheritor of the prerogative writs of mandamus and certiorari and so on.
Habeas corpus was first talked about in 1200. The other prerogative writs are of a similar age. It is where the Queen, on behalf of a person under her protection within her realm, calls to account a Minister or whoever, or a public authority, and, on the application of that person, makes them explain what they have done. Contrast that with what the Government are trying to do with this immigration procedure.
I do not think that the Government want to treat this as an immigration matter but they want to avoid having to call people to an ordinary court of law, where there would be a charge, a trial, a sentence. It is far easier to go along with the immigration procedure. After all, it does not affect the Brits or involve the terrorists in Northern Ireland; it affects foreigners who enter this country. We do not really want them, we cannot deport them, and so we are going to deal with them in a different way. XWe are not going to call the Queen in", say the Government, Xand use the traditional methods; we are going to go along to a procedure which was not intended or constructed to deal with the liberty of the subject but to deal with deportation orders". That is why SIAC came into being. It was not to protect the liberty of the subject or anything of that sort, but to check whether a deportation order made by the Minister was correct.
When one has judicial review or habeas corpus, it is essential that the person who makes the application in the name of the Crown knows everything upon which the Crown relies. In other words, all the information and argument that is placed before the court must be disclosed to the applicant. As we have discussed, it may be necessary in certain circumstances to have safeguards in place in the form of public interest immunity certificates. It is better occasionally, although not very often, to forgo the proceedings and to allow the applicant to have his way rather than to reveal secrets. That is a view taken by the Government. But within that procedure there are safeguards that we have grown up with. They are part of the fabric of this country. We know what it means. It is something that we have inherited.
Here, in the face of an emergency in America, we are adopting strange procedures. We are detaining without trial in a way that we never have done, at least not in recent times, even in the face of the most extreme outrages such as the Brighton bombing, the Canary Wharf bombing and all the others. We have never
found it necessary to abandon the traditional safeguards: trial, the criminal courts or the use of prerogative writs.What judicial review and habeas corpus add is legitimacy—history and legitimacy, the sort of things that we seek to defend in our constitution. If the Minister does not see that, I am sorry. What he is putting in their place is, in a sense, a low-grade procedure which has the unique quality that the liberty of the person concerned is to be taken away and that person will not know why. I find that completely unacceptable.
10.30 p.m.
Earl Russell: I know that the Minister had to listen to an enormous amount of material during this debate, but will he kindly correct one remark. He said that no one had made an argument for anything extra that judicial review might add. I did, in my Second Reading speech. The Minister may have thought that it was not—as 1066 And All That would put it—memorable, but I did set out such an argument. I shall not elaborate on the matter now because I am about to return to it in relation to the next amendment.
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