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Lord Campbell of Alloway moved Amendment No. 22:
- Page 10, line 38, at end insert—
The noble Lord said: My Lords, having carried this torch on Second Reading and in Committee, I am fully conscious that if I speak for too long it could well blow itself out. The amendment is wholly dependent on Amendments Nos. 32 and 33, which would delete
The purpose of the amendment is that, in accordance with minimum requirements of our tenets of natural justice, the Secretary of State shall issue with the certificate, under Clause 21(1), written grounds to the person certified in which the application for leave to proceed to a substantive hearing on judicial review may be made and that, at the substantive hearing, the material on which certification was issued should be made available to the judges designated to sit. As a measure of assurance for the security services, it is suggested that the judges so designated could be Privy Counsellors. The question of privilege from disclosure for sensitive intelligence was fully discussed in Committee.
Before I sit down, I wish to point out that the ouster clauses as drafted are wholly effective, are without the constitution—which it is the acknowledged function of your Lordships' House to safeguard—breach the separation of powers and usurp the functions of the judiciary. There is no just cause for excluding the person certified from access to judicial review, for limiting appeals on SIAC decisions to the Court of Appeal on an error of law or for excluding an application to the High Court for judicial review of a decision by SIAC.
The whole structure of the Government's proposed regime is unacceptable. I beg to move.
Lord Lester of Herne Hill: My Lords, with great respect to the noble Lord, Lord Campbell of Alloway, he may misunderstand the position. The noble and learned Lord the Attorney-General described it accurately in Committee, but I shall make some brief comments of my own.
SIAC was set up because English judicial review and Northern Irish judicial review proved to be a wholly ineffective remedy. That is why Amnesty, Liberty, the AIRE Centre and the Joint Council for the Welfare of Immigrants proposed to the European Court of Human Rights in the case of Chahal that the Canadian procedure along the lines of SIAC should be introduced. The SIAC procedure results in the establishment of an independent and impartial tribunal established by law which must act judicially under the Human Rights Act, including Article 6 of the European Convention on Human Rights.
That does not mean that the procedure of SIAC does not need to be improved and strengthened, or that there is a case for a complete ouster of judicial review—a matter that we shall come to on later amendments. However, it means that one should not exaggerate about the existing mechanism.
My party commended the Government for introducing SIAC. In Committee the noble and learned Lord the Attorney-General undertook that the suspected terrorist would be provided with a statement of the grounds for refusal before the appeal, provided it did not risk exposing closed material. My view is that that should be incorporated if not into the Bill, then
The Attorney-General (Lord Goldsmith): My Lords, the issues involved in this amendment were discussed at some length in Committee. I shall cover them more briefly on this occasion.
There are two elements to the amendment, one of which is judicial review. I say at once that I am grateful for what the noble Lord, Lord Lester of Herne Hill, has said, confirming the comments I made in Committee and on Second Reading, that judicial review as properly understood is and was a wholly ineffective remedy. That is what the European Court of Human Rights said and that is why SIAC has been invented. I shall discuss that matter in more detail when we discuss Amendments Nos. 30 and 31, which is when I understand the substantive debate is to take place.
As I say, I do not want to enter a detailed discussion about judicial review at this stage. I refer to XJudicial Review" with a capital Xj" and a capital Xr" because, as noble Lords know, I regard SIAC as being judicial review with a small Xj" and a small Xr" in the sense of proper judicial scrutiny by a body including a High Court judge. The amendment of the noble Lord, Lord Campbell of Alloway, demonstrates precisely why judicial review in that classic sense is an inappropriate remedy. Let me explain why.
If the Secretary of State's certificate were—as this amendment proposes—to be accompanied by a list of reasons for the decision, the person against whom the certificate is issued will have an immediate right of appeal to SIAC. That appeal will consider not just the disclosable reasons for the detention—which is all that the noble Lord, Lord Campbell of Alloway, asks for in his amendment—but also the non-disclosable reasons for the decision; that is, the intelligence information on which the Secretary of State made his decision. Sensitive information is likely to be involved which cannot be disclosed without risk. However, SIAC would be able to look at that; the court on judicial review would not. The amendment of the noble Lord, Lord Campbell of Alloway, recognises that. A court on judicial review would not be able to look at the full picture; it would not, therefore, constitute a safeguard for the person detained. As I say, I shall develop that point later.
I refer to the other aspect of the amendment; namely, the requirement placed on the Secretary of State to provide written grounds for his belief or suspicion. As I explained in Committee, there is already on the face of the Bill an obligation to apply the SIAC rules. As I also explained in Committee, the SIAC rules already impose an obligation on the Secretary of State, if he wishes to resist the appeal, to give not just the reasons for resisting it but also to
In Committee I further undertook that, in addition to that full statement of the reasons, not limited to the disclosable part, at the time the certificate is issued—which I recognise may be shortly before the information is provided following an appeal—there will also be provided to the suspected international terrorist an outline of the case against him to the extent that that can be done without risking the exposure of closed material. Given the existence of an obligation through the rules imposed on the face of the Bill, I should hope that the undertaking I have given will satisfy the one remaining point which is simply to advance a little in time the understanding on the part of the suspected international terrorist of why he is detained. However, I repeat what I said in Committee, without elaborating on it; namely, that the person against whom a certificate is issued will immediately be able to appeal. He does not have to ask for permission, as one does on judicial review. He can go straight to SIAC and at that stage if the Secretary of State wishes to oppose the appeal he will then have to produce his full reasons for doing so, including all the disclosable material. I hope that that undertaking—
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord the Attorney-General for giving way. Am I right in thinking that in any event SIAC is under a duty imposed by Section 6 of the Human Rights Act to ensure a fair hearing and, therefore, natural justice must be done to the extent that is possible in the circumstances?
Lord Goldsmith: My Lords, absolutely. I think that I made that point on a previous occasion but certainly that is correct. I hope that in the light of my comments and given that, as I understand it, the main debate on judicial review is to take place on a later amendment, which is why I shall not deal with the matter in any more detail now, I respectfully ask the noble Lord to withdraw the amendment.
Lord Campbell of Alloway: My Lords, this is not the time or the place in which to entertain an erudite discussion on the rectitude of the views of the noble Lord, Lord Lester, that are taken for granted by the noble and learned Lord the Attorney-General, and I do not propose to do so. As the noble and learned Lord the Attorney-General knows, I, for reasons I shall not repeat, do not accept at all that judicial review is an inappropriate or ineffective remedy. I do not accept, as he well knows, the criticisms that he has made of my amendment. Not a word has been said by the noble and learned Lord to excuse a breach of the constitution and the separation of powers. The merits of judicial
Amendment, by leave, withdrawn.
Clause 25 [Certification: appeal]:
X(1A) Any certificate issued under subsection (1) shall be accompanied by written grounds on which the belief or suspicion of the Secretary of State is reasonably entertained (without documents, materials, or information for which privilege from disclosure will be claimed on grounds of national security), which shall be subject to judicial review in the High Court."
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