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Lord Rooker moved Amendment No. 23:
- Page 13, line 10, leave out from Xmay" to end of line 11 and insert Xbe commenced only—
The noble Lord said: My Lords, government Amendments Nos. 23 and 24 give effect to the request of the noble Earl, Lord Russell, in Committee; namely, that the period of three months for appealing the decision of the Secretary of State to issue a certificate under Clause 21 should be capable of extension with the leave of SIAC. The amendments may seem a little elaborate as we have limited SIAC's discretion to allow appeals after three months to situations where the review of a certificate is not already under way.
Amendments Nos. 27 and 29 are consequential upon Amendments Nos. 23 and 24. Amendment No. 28 provides that a decision by SIAC whether or not to allow an out of time appeal should not be subject to appeal to the Court of Appeal. Amendment No. 25 provides that the second and subsequent reviews will take place every three months after the previous review has been determined. The first review will continue to be six months after the certificate is issued, or, where applicable, after the appeal against that certificate has been finally determined. Amendment No. 26 is consequential upon Amendment No. 25. I hope that that satisfies noble Lords. As I have said before, the amendments result from the Government listening to what was said in Committee and bringing forward appropriate amendments. I beg to move.
Lord Goodhart: My Lords, we welcome these amendments, which indicate at least a modest degree of flexibility on the part of the Government. They are plainly a step in the right direction.
Baroness Buscombe: My Lords, I add on behalf of Her Majesty's Opposition that we also welcome the amendments.
The Lord Bishop of Portsmouth: My Lords, likewise, we support the amendments with some reservations about areas in Amendment No. 26 concerning SIAC. However, on the whole, we support the amendments.
On Question, amendment agreed to.
Clause 26 [Certification: review]:
Lord Rooker moved Amendments Nos. 24 to 27:
On Question, amendments agreed to.
Clause 27 [Appeal and review: supplementary]:
Lord Rooker moved Amendments Nos. 28 and 29:
On Question, amendments agreed to.
Lord Ackner moved Amendment No. 30:
The noble and learned Lord said: My Lords, in moving Amendment No. 30, I shall speak also to Amendment No. 31. These two amendments are a sort of bonne bouche before one reaches the piece de resistance, which of course is the next judicial review to be taken.
The Government have been at pains, and rightly so, to emphasise the strength and substance of SIAC. I simply endeavour to add a small gloss to that respectability in two ways. The first is set out in Amendment No. 30. I respectfully propose that only members of the commission who have been appointed by the Lord Chancellor—these are the additional words—
Amendment No. 31 provides that:
That is all that there is to my amendments. They are short and simple and I hope that they will be thoroughly acceptable to the Government. I beg to move.
Lord Donaldson of Lymington: My Lords, of course I support the amendment. I rise to my feet purely because my noble and learned friend Lord Ackner said that SIAC has all the powers of judicial review. That is not correct.
Lord Goldsmith: My Lords, I look forward to returning to the last observation of the noble and learned Lord, Lord Donaldson, in, I believe, the next group. I hope that I shall give some comfort to the noble and learned Lord, Lord Ackner, although perhaps not quite in the terms of the amendment that he has tabled.
Amendment No. 30 is to the effect that appointments to SIAC by the Lord Chancellor should be made only after he has consulted the Lord Chief Justice in cases where the members would hear an appeal on, or a review of, a certificate made under Section 21. There are a number of reasons why I am not attracted to that amendment.
First—when tabling the amendment, the noble and learned Lord would not have known that this was the case—this issue had been anticipated by the Lord Chancellor and the Lord Chief Justice, and arrangements have been made to deal with it in a manner which, I am told, satisfies them both. Those arrangements are that all High Court judges currently nominated to hear cases in the administrative court, which deals with XJudicial Review", with a capital Xj" and a capital Xr", will also be appointed to SIAC. That would allow the Lord Chief Justice to call on 25 High Court judges and allocate them to SIAC cases as appropriate. In addition, the Lord Chief Justice and four Lords Justices will be appointed to SIAC.
The question of the allocation of a judge to a case is never a matter for the Lord Chancellor; it is a matter for the Lord Chief Justice. Therefore, I hope that the noble and learned Lord, Lord Ackner, will be satisfied that the effect of the arrangements made between the Lord Chancellor and the Lord Chief Justice are already that the Lord Chief Justice will be in a position to allocate judges to the case and that those who have been nominated to hear SIAC cases are already nominated to hear administrative court cases.
I am not sure whether the noble and learned Lord also had in mind the question of the appointment of the other members—I do not mean under Amendment No. 31 but simply the role of the Lord Chief Justice in relation to other members. I am grateful to the noble and learned Lord for shaking his head as I do not need to deal with the question of whether it would be appropriate for the Lord Chief Justice to be involved in those appointments. I suggest that it is not.
The Special Immigration Appeals Commission Act 1997, which set up SIAC and which already operates in relation to cases with which SIAC deals, does not make it a requirement for SIAC appeals that the Lord Chief Justice should be involved in the way that the noble and learned Lord suggests should be the case in relation to the nomination of judges. What is more—I referred to this matter in Committee—it is possible for two cases to relate to the same individual. They may either come together in SIAC or run side by side. In those circumstances, it would be odd if there were a requirement to consult the Lord Chief Justice on the appointment in one case but not in the other. I hope that the main point will satisfy the noble and learned Lord.
I turn to Amendment No. 31, which relates to the composition of SIAC. Noble Lords will recall that SIAC was established after the European Court of Human Rights, in the Chahal case, held that judicial review and habeas corpus were inadequate remedies to deal with cases where the Secretary of State was making a decision on whether or not someone should be deported from the country on the grounds that it was conducive to the public good; in other words, in effect, contrary to national security. We lost in that case, and I shall need to return to it.
When, therefore, this Government proposed the establishment of SIAC, it came before Parliament, as I read the Second Reading debate in this House, with cross-party support. Schedule 1 to the 1997 Act sets out what the membership of SIAC should be. Paragraph 5 of that schedule states that SIAC will be duly constituted when it consists of three members, of whom at least one holds or has held high judicial office—that is, as the noble and learned Lord says, having been at least a High Court judge—and at least one of whom is or has been appointed as chief adjudicator under Section 57(2) of the Immigration and Asylum Act or is or has been a member of the Immigration Appeal Tribunal, qualified as mentioned in that Act. In other words, a second member must be a legally qualified member who has immigration experience through involvement in the immigration judicial and tribunal structure.
In practice, SIAC cases to date have been heard by a panel consisting of one person from each of those two categories—a High Court judge and an immigration judge—and a third, lay member. On Second Reading of the SIAC Bill, the noble Baroness, Lady Blatch, speaking for the Opposition, said:
At that stage, a good model was thought to be a High Court judge, a judge with immigration experience and a third person with experience and understanding of security matters, ensuring that the tribunal had the expertise to understand and weigh the evidence.
If the amendment were passed and two of the persons had to be High Court judges, one of the other two categories would not be represented unless we were fortunate enough to find somebody with expertise in both areas. The model has worked well so far and I do not believe that it would be an improvement to substitute for one of the persons with relevant expertise another High Court judge. While recognising the spirit in which the noble and learned Lord moved the amendment, I invite him to withdraw it.
(a) within the period of three months beginning with the date on which the certificate is issued, or
(b) with the leave of the Commission, after the end of that period but before the commencement of the first review under section 26."
Page 13, line 13, leave out from Xmust" to end of line 20 and insert Xhold a first review of each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate is issued.
(1A) But—
(a) in a case where before the first review would fall to be held in accordance with subsection (1) an appeal under section 25 is commenced (whether or not it is finally determined before that time) or leave to appeal is given under section 25(5)(b), the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined, and
(b) in a case where an application for leave under section 25(5)(b) has been commenced but not determined at the time when the first review would fall to be held in accordance with subsection (1), if leave is granted the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined.".
Page 13, line 22, leave out Xsix" and insert Xthree".
Page 13, line 23, leave out Xa review under subsection (1) or" and insert Xthe first review or a review under".
Page 13, line 26, after X(1)" insert X, (1A)".
Page 14, line 6, after Xsection" insert X25(5)(b) or".
Page 14, line 14, leave out X26(1)" and insert X26(1A)".
Page 14, line 38, at end insert—
X( ) For the purposes of appeal and review under sections 25 and 26, the Commission shall comprise only such members as have been appointed by the Lord Chancellor after consultation with the Lord Chief Justice.".
Xafter consultation with the Lord Chief Justice",
are entitled to sit.
XFor the purposes of appeal and review under sections 25 and 26, two of the three members of the Commission must hold or have held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876 . . .".
Under that Act, and relative to this country, high judicial office means, apart from the Lord Chancellor, a judge of the High Court or of the Court of Appeal. At present, that is as it stands. However, under the Act the obligation is that at least one of the members must be of high judicial office. I suggest that, out of the three, because it is emphasised that this commission performs important legal functions—so important
that it has all the powers and more of judicial review—two-thirds of those who comprise the commission should be judges.
XWe welcome the fact that the special immigration appeals commission will have at least one judge sitting on it, and also a member of the Immigration Appeals Tribunal or a special adjudicator. Several practitioners working in the field of immigration law have said to me that, given the increasing complexity of case work, having a specialist tribunal of this kind can only be a good thing".—[Official Report, 5/6/97; col. 737.]
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