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Lord Ackner: My Lords, I thoroughly accept that the Minister has provided a satisfactory answer to Amendment No. 30 but not to the second. Under the Immigration and Asylum Act 1999, the panel is bound to have at least one chief adjudicator or a member of the SIAC because such expertise is obligatory. When it comes to high judicial office, I say that it is not a case of at least one but that there should be two. Members of the commission will have to consider whether there should be an appeal on a point of law. Under the Bill, they could be outvoted by the layman and the chief adjudicator as it is bound to be a majority decision.

The major part of the case is likely essentially to be a legal one.

Lord Goldsmith: My Lords, perhaps the noble and learned Lord will permit me to say that the nature of the SIAC review is not legal. I entirely accept that the next stage—the Court of Appeal—would be, but I did not understand that we were discussing that part of the review.

Lord Ackner: My Lords, I refer to the Court of Appeal because the SIAC or the Court of Appeal must give leave for appeal. As matters now stand, an appeal is limited to points of law. On the issue of whether or not there should be an appeal, it is obviously desirable that there is a majority of judicial power. The layman does not seem to feature at all in the proposal. However, this matter is not one on which I wish to divide the House, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

6.45 p.m.

Clause 30 [Exclusion of legal proceedings]:

Lord Mayhew of Twysden moved Amendment No. 32:

The noble and learned Lord said: My Lords, I will speak also to Amendment No. 33, on which my argument will be the same.

I reckon that there is much in the Bill that is uncongenial to all of us. The saying that needs must when the devil drives aptly encapsulates our attitude and, to be fair, that of the Government. We know that the devil has been driving. Nothing much more diabolical could possibly be imagined than the events

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of September 11th nor the character of the threat confronting us, so the Government tell us, here and now.

When the Government say that, we must accept it. We do, but we must also scrutinise extremely carefully what are the needs as the Government describe them. We must do that with special care when the Government, with their disciplined majority, have rushed through the elected House, with scant debate allowed, a measure that permits the Home Secretary to order unlimited detection or indefinite detention without trial. Many say that power resembles internment. We know the arguments but whatever nomenclature one gives it, that is a stern measure indeed.

We must examine also what are the needs to exclude judicial review. When, in Clause 30, the Government seek to exclude the well-established power of senior judges to review in the High Court the way in which the Home Secretary has acted, a complaint of irregularity having been made, our duty is much stronger.

Are those extraordinary exclusions needed? I say Xexclusions" in the plural because Clause 31(2) contains the same exclusion in a clause that channels into the SIAC proceedings that challenge the UK's derogation from Article 5 of the European Convention on Human Rights or the designation under the Human Rights Act 1998 through the 2001 designated derogation order that reflects that derogation.

For the defence of our country, there is no need to exclude constitutional safeguards—especially where the liberty of the individual is at stake. Such exclusion is not among the needs. One has only to recall the words of the Attorney-General on Second Reading. We had an enjoyable midnight hunt in which the Attorney-General had run elusively and with grace—but at length, he came to answer the question that I put to him of why it was necessary to exclude judicial review. After courteously apologising for not answering before, he asked,

    Xwhat value will judicial review on top of an existing judicial scrutiny provide? All it will do is add time and delay unnecessarily".—[Official Report, 27/11/01; col. 283.]

His argument was that under the Bill, SIAC will be able to do all that the High Court can do on judicial review. My noble and learned friend Lord Donaldson of Lymington will say something about that later.

Even if it were true that there would be no value in judicial review—and I respectfully suggest it is not true—that would not be sufficient reason to prevent a detainee from seeking to resort to the High Court for so profoundly important a remedy against the abuse of executive power, especially when his liberty was at stake. A detainee should not be obliged to go to a special commission, not a court, set up less than four years ago. It is special indeed—special in its personnel, special in its function, special in its procedures and tasked with a significantly different job.

It is not correct to suggest that judicial review will have no value. For example, how could SIAC review its own activities, on complaint of irregularity? It could not. The noble and learned Lord the Attorney-General

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relies on the right of appeal to the Court of Appeal, but that is only on a point of law. Conscientious as he always is, he concedes in a letter that he recently sent to my noble friend Lady Buscombe that it is not in the case of every alleged procedural defect that an appeal will lie to the Court of Appeal. In some instances—if there is no judicial review—there will be no remedy. This matter will be dealt with more fully—and certainly with much more authority and experience—by the noble and learned Lord, Lord Donaldson of Lymington, and, no doubt, by others. Time is getting on, so I shall not duplicate the arguments.

I conclude with three reflections. First, while any judicial review is proceeding, the detainee will remain in detention in all but the most exceptional and improbable case—or so I would judge. Secondly, the power of senior judges to review, on complaint of irregularity, whether power conferred by Parliament has been exercised with proper regularity does not undermine the parliamentary will; on the contrary, it supports it. Judges simply tell the decision-maker who has taken a wrong turning where he went wrong procedurally; they will tell him to go back to where he went wrong and to start again.

My third point bears closely on the argument that there would be no point in judicial review and the comment about how excellent and comprehensively sufficient is the statute that set up SIAC. When SIAC was set up, there was no provision in the relevant Bill to exclude judicial review; SIAC has got on all right, and its activities have always been amenable to judicial review. Judicial review was not excluded, but it has never once been sought—we have that from the Home Secretary. The Attorney-General's anticipation of time being wasted and of delay cannot derive from any adverse experience in that regard. In truth, the experience and the record should reassure him.

My submission is that in the Bill we should not be driven to surrender a precious safeguard against the abuse of power, especially when there is no need for it. If one did so, one could be sure that such a precedent would soon be followed because, in my experience, all departmental Ministers resent judicial review. That in itself is a good reason why it should be cherished.

Clause 30 should be removed, as should Clause 31. I beg to move.

Lord Renton: My Lords, I hope that my noble and learned friend will clarify one point. When there has been judicial review, can the judges who heard it refer the matter back to SIAC, or is SIAC's decision simply annulled?

Lord Mayhew of Twysden: My Lords, SIAC could perfectly well refer—

Lord McIntosh of Haringey: My Lords, we are on Report and the noble and learned Lord, Lord Mayhew, will have an opportunity to respond to that point when he concludes the debate.

Lord Goodhart: My Lords, judicial review is a fundamental defence of the liberty of the subject

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against the oppressive actions of the executive. Therefore very strong justification indeed is necessary to exclude it.

The most that can be said in this context is that judicial review will not often be necessary. In most cases, it is likely that an application for judicial review will be refused by the court that hears it because that court will decide that an appeal to SIAC about the Home Secretary's decision or an appeal to the Court of Appeal about SIAC's decision is the more appropriate procedure. There will be a few cases—the noble and learned Lord, Lord Donaldson of Lymington, will outline one or two examples—in which judicial review will provide relief that SIAC cannot provide. That is a strong argument for keeping judicial review. I do not believe that there is any serious argument for abolishing it. It is wholly unnecessary to exclude it and, as the noble and learned Lord, Lord Mayhew of Twysden, said, doing so will set a very bad precedent indeed. I strongly support the amendment.

Baroness Buscombe: My Lords, it gives me great pleasure to follow my noble and learned friend Lord Mayhew of Twysden and the noble Lord, Lord Goodhart. I am grateful to the noble and learned Lord the Attorney-General for writing to me in response to our concerns, which were expressed at Second Reading and in Committee, regarding the right of appeal on a point of law, and whether that right would include appeals relating to SIAC's procedures.

I quote, with respect, what the noble and learned Lord the Attorney-General confirmed in his letter. He wrote:

    XI am satisfied that the Court of Appeal would indeed have jurisdiction to entertain an appeal on a point of law in a case where the Special Immigration Appeals Commission . . . had failed to comply with its own procedural rules".

That is helpful so far as it goes, but the noble and learned Lord went on to say:

    XThis is not to say that an appeal will necessarily lie on a point of law in all cases where there has been an alleged procedural defect in the proceedings before SIAC. Whether the way is open to take a case to the Court of Appeal will depend on a range of factors, such as the nature and materiality of the error in question".

The noble and learned Lord the Attorney-General is not therefore minded to accept the amendment to which I spoke in Committee; namely, Amendment No. 124. He would not do so because, in his words,

    Xto include express provision to that effect in this Bill would risk casting doubt on the operation of other statutory provisions which provide for an appeal on a point of law".

Her Majesty's Opposition believe that, while the noble and learned Lord the Attorney-General is endeavouring to be helpful, that answer in fact weakens the Government's case for the need to exclude judicial review because of the admission that appeal on a point of law does not work universally.

We are therefore firmly of the view that Clause 30 and Clause 31(2) should be excluded from the Bill, for all of the very cogent reasons that noble Lords have already expressed. To repeat what other noble Lords

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have said would be otiose. I, too, look forward to the comments of the noble and learned Lord, Lord Donaldson of Lymington.

The proposal to exclude judicial review would set a very dangerous precedent. It is amazing to think that a Labour Government see fit to deny the proper process of law, which can call to account the decisions of the executive. Perhaps, in the scheme of things, and taking into account the debates that we have already had on this part and other parts of the Bill, we should be not surprised but saddened.

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