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Baroness Buscombe: I shall be brief. I thank the noble and learned Lord the Attorney-General for what I felt was quite a positive response. I hope that the noble and learned Lord and other Ministers have noted the extraordinary restraint on the part of the Opposition Front Bench in the debates on judicial review. We have adopted that approach because, although we are unhappy at the exclusion of judicial review, we understand the need to try and assist whenever we can in relation to the speedy passage of the Bill. In that sense, we felt that the minimum we should ask for was the possibility to appeal on a point of law involving the procedures of SIAC and where it fails to follow its own procedures. We wait with somewhat baited breath in the hope that the noble and learned Lord the Attorney-General will dispel our lurking doubts on Report.
It has been difficult for us to continue to show such restraint. There is still time in the coming days, through the next two stages of the Bill's progress, to unleash some of that restraint. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 125 not moved.]
On Question, Whether Clause 30 shall stand part of the Bill?
Earl Russell: I apologise to the Minister if I have ignored other ouster cases. I remind him that I believe in the principles of natural justice. I therefore tabled a Question for Written Answer on 18th October asking what previous attempts had been made to restrict judicial review by statute and what had been the results of those attempts. I asked on Second Reading whether I could hope for an Answer before Committee. At
three o'clock it had not yet arrived. If I miss out any precedent, as soon as I am informed of it I shall, of course, take account of it.
Lord Rooker: When the noble Earl gets his Answer, I hope that he will also get a written apology from one of the permanent secretaries. His Question has been batted around from one ministry to another. It arrived at my department on Tuesday—the day that he made his Second Reading speech. I apologise to him, because it will fall to me to answer him, but I shall see that he gets a proper apology from those who have batted his Question round. It is unacceptable that he has been held back by the delay in answering his Question. I have a draft response, which I am happy to give to him or to read out to him from the Dispatch Box.
Earl Russell: I should be most grateful if the Minister would do that. I think that it would be most helpful to the Committee.
Lord Rooker: I shall read out the Question and the Answer so that everything is on the record. The noble Earl asked the Government:
- XWhat previous attempts had been made to restrict the right to judicial review by parliamentary statute and what had been the results of such attempts".
- XThere are numerous examples of statutory provisions which prevent review by the courts to a greater or lesser extent and it is not possible to provide a comprehensive list. Such provisions vary enormously, depending on the context in which they appear. For example, a statute may provide that a certificate by a Secretary of State shall be conclusive evidence of the matters contained therein. Alternatively, it may provide that a particular decision shall be final or conclusive or that it shall not be questioned in any court. In many cases, an alternative review process is provided for. Many of the statutory provisions in question have not been tested in the courts. Some of those that have been tested have been held not to prevent review—sometimes a limited review—by the courts".
Earl Russell: I am most grateful to the Minister. I thought that something like that had probably happened. As my late noble friend Lady Seear always used to say, it is not conspiracy, it is cock-up. That happens to all of us. I thank the Minister very warmly.
I noticed that his Answer was full of qualification. There were certain cases in which the courts had not been restrained by such provisions. Some of the examples were a good deal less far-reaching than the ones that we are considering here.
If I say that this is a grey area, I think that I am entitled to say that it is a very dark shade of grey. It is a doubtful constitutional area that brings some very wide questions into play. A lot of them extend a great deal wider than the Bill and are arguably more important than the whole of the Bill.
The defence of both Ministers has been throughout that SIAC is, in effect, a form of judicial review. In other words, no significant restriction is imposed. That is the maid's baby defence—it is a very little one.
My noble friend Lady Williams said that when our liberties are restricted, that is done by gradual reduction. I think of a case involving King James XI and I, who wanted to control the General Assembly of the Church of Scotland. His first move was to request that a meeting scheduled for a particular day could, as a favour to him, be postponed from the morning to the afternoon because he wished to attend. The elders of the kirk instantly recognised that request as the thin end of the wedge but decided that, were they to oppose it, they would appear ridiculous. They were right. It was the thin end of a wedge that went right through to the piece of wood to which it was applied. I cannot help wondering whether the SIAC defence is another in that line.
A full judicial review enables the court to look at the whole case. The SIAC procedure directs people strictly to certification. The Bill directs the proceedings of the court through the wording of Clause 34(3):
- XWhere this section applies the Commission must begin its substantive deliberations on the asylum appeal by considering the statements in the Secretary of State's certificate".
That does not provide for any proper examination of the asylum claim or give the opportunity to consider the certificate in context.
On Second Reading, I raised the Nelson Mandela point that, depending on the situation, not all forms of terrorism are necessarily equally grave. The point made by the UNHCR is memorable, even if mine is not. It advances the major and material point that the exclusion of the asylum claim makes it impossible to consider the proportionality of the Secretary of State's certificate. If the claim is excluded, the judicial review is not sufficient and will not cover the whole case.
The number of Prime Ministers of newly independent Commonwealth countries since the war who have been in British prisons is high. How they related to this country when in power had a great deal to do—in some cases to my certain knowledge, in others in my belief—with how they had been treated by this country. One fine Sunday afternoon in August, my wife and I pretended to be tourists and went down the river to Greenwich. All the flags were flying at half mast, and we were told that that was being done for Mr. Jomo Kenyatta. Not all the people who have been regarded as terrorists necessarily need to be treated exactly the same way. Jomo Kenyatta's death was mourned in this country, by the white population of Kenya and by many people who would cheerfully have certificated him under the Bill. In future, are such people to be totally barred from free consideration in this country? Can we consider that question without proper judicial review?
More serious is that the proposed procedure makes a mess of the delicate web of authority woven between the executive, Parliament, the courts and the principles of natural justice—one of the few checks and balances in our constitution. That is far more far-reaching in its effect than anything that applies to the Bill. Because the common law is not entirely dependent on Parliament, we do not have an elective dictatorship. The common law rests on precedent. It does not owe its authority to Parliament. One can trace the common
law back to 1189 and the limits of legal memory. In the 1960s, a case was decided on a charter of 1189, which was nearly a century before the beginnings of Parliament. So there are vires in the common law which do not originate from Parliament. That leaves one to reflect upon the question hinted at by Sir John Laws in his article in Public Law: what were the vires by which Parliament was first set up? The relationship between Parliament and the common law is an area which has not been thoroughly explored and which perhaps sometimes we may be prudent not to explore.The principles of natural justice, or at least the few basic central principles of natural justice—to hear both sides and not to be judge and party in one's own court—go back beyond the limits of legal memory; that is, beyond the common law itself. So no lawyer can have an authoritative opinion on their origin. It is a long time ago, but the Government ought to know some of these things before legislating in an area which I do not believe they fully understand.
The question, XWhat is the comparative authority of the principles of natural justice and an Act of Parliament?", is not clear. I believe all of us in this Chamber agree that an Act of Parliament can do whatever it likes. But it remains for the courts to decide what an Act of Parliament has actually done.
The courts decided a long time ago that they were going to interpret Acts of Parliament according to the intention of the legislator. That goes right back to the days of Chief Justice Bearford, when judges actually helped to write the statute. He said in one memorable judgment, where it was being argued whether something was to be excluded because it was not in the statute, or included because it was implicit in the statute:
- XHe that drew the statute meant to put it in and only left it out through inadvertence. It shall therefore be construed to be in the statute".
In another case in a parallel jurisdiction in Bologna there was a law making it a capital offence to shed blood in the palazzo. One of the judges was being shaved in the palazzo, and the barber nicked him and shed blood. He brought a case against the barber under the statute. But his brethren, his fellow judges, said that that was not in the intention of the statute so the case was dismissed.
It is along those lines that judges continue to say that something is so unreasonable that Parliament cannot possibly have intended it. In fact, it is the duty of judges to interpret the intention of Parliament according to the principles of natural justice, because when they first began to interpret the intention of Parliament, there were absolutely no records, save the statute itself, on which they could do it. That remains the case.
The noble and learned Lord, Lord Woolf, in 1996, said that if Parliament intends to confer a power to act unfairly—that is, a power contrary to the principles of natural justice—it must say so in express words. That seems to me to be a phrase pregnant with endless possibilities, not all of which I would be happy to see us forced to explore.
We should remember, to get this in perspective, that the first Acts of Parliament prohibiting murder were passed as recently as 1956. Indeed, I can remember making my maiden speech at the Oxford Union on it. So something absolutely central in our law rested on common law and on precedent long before there was any statute that could embody it.
There is here a web and a balance. We do not have many checks and balances here; we do not have a constitution; we do not have a recorded foundation; but we have a common law with which Parliament occasionally has to compete for authority. I understand that that is extremely inconvenient to Ministers; but that is precisely why it is so important.
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