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Lord Neill of Bladen: In his review of the history of natural justice the noble Earl appears to have overlooked the 16th century case where natural justice was traced back to the Book of Genesis, because God, before expelling Adam and Eve from the Garden of Eden, gave them both an opportunity to respond to the charge; none was granted to the serpent.

Earl Russell: I thank the noble Lord. I was familiar with that case. However, since we are in an area where, after our debate on incitement to religious hatred last week we are facing a religiously plural society, I thought it best not to take up that line of argument because it led us into byways where I did not think we wanted to go.

Lord Goldsmith: I hesitate to intervene. I want to make three points, if I may, because I have said so much about this area. First, there are many other examples of judicial ouster. Dare I quote back to the noble Earl, Lord Russell, Article 9 of the Bill of Rights 1688? It provides for an ouster jurisdiction of the courts because nothing which is said in debates or proceedings in Parliament ought to be questioned in any court or place outside Parliament. That has been a successful judicial ouster.

There are other examples in statutes. We have referred to Anisminit. In that case the House of Lords said that if it was not a decision it could review it. It was an ouster. Section 44(2) of the British Nationality Act 1981, RIPA, which has been referred to already, and the Terrorism Act are examples, and there are others. I suggest that there is not the constitutional problem which has been identified.

Secondly, on the idea of a judicial scrutiny by another route, I hope that the noble Lord, Lord Thomas of Gresford, will forgive me. I take exception to his expression of SIAC being a low-grade process. A process with a High Court judge and another judge as a security expert, if I may so put it, with an appeal to the Court of Appeal and the House of Lords is not a low-grade process. It is an important, robust judicial process

Thirdly, why do we say that that is more appropriate? It is more appropriate because it has the immigration experience, the security experience and can examine issues that the judicial review does not examine. For example, it has to look at the

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circumstances at the time that the matter comes before it. Judicial review is limited to reviewing a decision when it was made by the Minister. For that reason, it looks more at the substance than the judicial review would do.

Finally, I have touched previously on the point made by the noble Earl, Lord Russell. The SIAC procedure in this Bill deals with a certification. But the rest of the immigration decisions are themselves subject to the laid down procedures in relation to those decisions—an asylum application or a right to enter, for whatever reason it may be. That is reflected in the Bill. Clause 27(7) and (8) recognise that, because the key to this detention is an existing power under immigration law to detain, that may be the subject of an appeal; and if it is an appeal which is going to SIAC then Clause 27(8) provides that SIAC shall, so far as is reasonably practicable, deal with the two sets of proceedings together.

I stand unrepentantly on the proposition that there is not a practical effect given by judicial review that is not given by SIAC. Therefore, I hope that the clause will stand part.

Lord Thomas of Gresford: The noble and learned Lord the Attorney-General has taken exception to my description of the commission as low grade. That was perhaps excessive and I withdraw it.

I am sure he would agree that were it not for the clause that he seeks to put forward it would be an inferior tribunal which would be subject to certiorari through the High Court. That is the traditional role of certiorari: to govern inferior jurisdictions.

Lord Phillips of Sudbury: With regard to other ousters, the noble and learned Lord mentioned the British Nationality Act, RIPA, and the Bill of Rights 1688. None of those has an ouster in circumstances where the liberty of the subject is at stake in the way that it is here.

Lord Goldsmith: The Bill of Rights? The Terrorism Act? RIPA?

Lord Phillips of Sudbury: On the Bill of Rights, the ouster to which the noble and learned Lord referred was simply that Members of this House and another place could not be prosecuted for what is said within these walls. That is a very different kettle of fish.

Earl Russell: I hope that I may return to the Bill of Rights for a moment. First, I think that the Minister was not in this Chamber when we passed the Defamation Act 1996. I think when he recollects that he might realise that he has picked up a two-edged sword.

Lord Goldsmith: I should have thought that he would eventually, but that is a different issue.

Earl Russell: I think that all parties concerned in that picked up a two-edged sword. What the Bill of Rights

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created was a traditional mediaeval liberty—an area within which the officers of the law did not enter. It is a privilege which survived in Oxford and Cambridge colleges until quite recently. It is a very different principle indeed from the one invoked here. It is a principle of internal self-government. It is a local autonomy like the City of London. It is not an ouster of the jurisdiction of the courts which in any way is intended to diminish the liberty of the subject. I think any Member of Parliament will agree that parliamentary privilege, whatever it may have done nation-wide, has not diminished the liberty of Members of Parliament.

Clause 30 agreed to.

Clause 31 [Legal proceedings: derogation]:

Lord Goodhart moved Amendment No. 126:


    Page 17, line 7, at end insert—


X( ) Section 6 of the Special Immigration Appeals Act 1997 (c. 68) shall apply to proceedings before the appropriate appeal court by virtue of subsection (3)(a) or (b) as it applies to proceedings before the Special Immigration Appeals Commission."

The noble Lord said: I hope that I can deal with this briefly. It is in the nature of a probing amendment. There is a problem when cases go from SIAC to the Court of Appeal on a point of law. As we all know, frequently points of law cannot be decided in the absence of the facts. For instance, the question whether there is any evidence to justify a particular finding of fact is in itself a point of law.

Therefore, there may well be the need when cases go to the Court of Appeal to deal with matters which have been dealt with in front of SIAC by the special representative. I wish to be satisfied that in that case there will be a mechanism by which the special representative will be entitled to appear in the Court of Appeal, and no doubt on the basis of rules made in the Court of Appeal, for a hearing in camera and in the absence of the appellant. But it is clearly necessary that his case may be put. That is the purpose of Amendment No. 126. Section 6, which enables rules to be made for a special representative's appearance, will apply in the Court of Appeal as well as in SIAC itself. I beg to move.

Lord Rooker: We believe that the amendment is totally unnecessary as the indications from the Court of Appeal are that it considers it has an inherent jurisdiction to involve the special advocate should it wish to do so. I shall try to speak as briefly as the noble Lord, Lord Goodhart.

In the case of Rehman, the Court of Appeal said that it considered it would have the inherent jurisdiction to call the special advocate involved in the SIAC case if that would help the court deal with the proceedings before it. That being so, making provision in primary legislation on this point does not seem necessary. But more than that, it could actually be unhelpful. There are now a number of bodies which have the special advocate procedure and from which appeals lie to the Court of Appeal. The Prescribed Organisations Appeals Commission is one such body. If we legislated in respect of one of these bodies only—in this case

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SIAC—that would call into question what the Court of Appeal (or its equivalent bodies in Scotland and Northern Ireland) might be able to do in respect of other bodies with a special advocate procedure.

Although we accept that the special advocate may on occasions be able to assist the course of justice by appearing before the Court of Appeal—or before the House of Lords—we do not think that the amendment is necessary or desirable.

Lord Goodhart: I am grateful to the Minister. I still have some doubts about that because, as I understand it, there is no decision by which the Court of Appeal has allowed a special advocate to appear in front of it. It has merely expressed the view—it is an obiter view—that it might have or would have the jurisdiction to do so if it so wished. I should prefer to see this matter on the face of the Bill in order to put it beyond any doubt. It is clearly important that such a jurisdiction should exist. We do not want to be faced with a situation in which we must pass rapidly an emergency Bill in order to ensure that the special advocate has such a right to

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appeal, if called upon to do so. However, this is not a matter which I consider appropriate to take any further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clauses 32 and 33 agreed to.

Clause 34 [Certificate that Convention does not apply]:

[Amendment No. 126A not moved.]

Clause 34 agreed to.

Clauses 35 and 36 agreed to.


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