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The Lord Bishop of Portsmouth: My Lords, I am grateful to noble and learned Lords for speaking so eloquently about judicial review. In the view of these Benches these amendments will ease the burdens on SIAC. I am particularly grateful for what the noble Lord, Lord Lester, has just said. The speeches pick up common themes which have run through debates on this Bill in your Lordships' House. They also echo some of the things which were said from these Benches last Thursday about building a proper measure of restraint into this legislation. These amendments have our support.

Lord Clinton-Davis: My Lords, I have listened very carefully to the speeches of the noble and learned Lords, Lord Mayhew and Lord Donaldson. I speak as a mere solicitor whereas they have held very high office.

I believe that the burden rests fairly and squarely on my noble and learned friend who will reply to this debate. At the moment I am persuaded that there is no very good reason for taking the draconian steps that the Government have foreshadowed in this debate. It is with enormous sadness that I say this. I have fought for civil liberties throughout my life as a solicitor and as a member of a very proud profession. I am bound to say that at the moment I see no reason to exclude the remedy of judicial review in the final analysis.

I face this evening with the prospect of voting with the Conservatives and, I suppose, with the Liberal Democrats, against my own Government. I beg my noble and learned friend to sympathise with the problem which I face. It gives me no pleasure at all to note that they are prepared to disregard, as I see it, a very important remedy which, in the final analysis, may be important for the individual. But I would rather stand by the proposition that the Government are wrong than to sully what I have stood for all these years.

When I ask my noble and learned friend to see reason on this point as I see it, I beg him to be as persuasive as he can with his colleagues. We have not yet reached the end of the day. There is still some prospect of change. I hope that the whole House will see that prospect as all important. In my view there is no need to abolish judicial review. As I say, the burden rests very heavily on my noble and learned friend to say that I am absolutely wrong about that. I am not being fanciful; I am being commonsensical. It is

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important that, when everything is under threat, we should stand firmly by the principles that are all important. My sole concern is with the individual who may be affected. The numbers involved may be few, but some people will be affected by this and they should not be denied the absolute remedy that they seek.

Lord St John of Fawsley: My Lords, I shall detain the House only a merest minute. This is an issue of the greatest importance, complexity and difficulty. I have listened to every word of this debate. The way in which this serious matter has been discussed, including the expertise of so many noble and learned Lords, fully justifies the existence of this House. I was particularly impressed by the speech of the noble and learned Lord, Lord Donaldson, and by the speech of the noble Lord, Lord Clinton-Davis.

I say to the noble and learned Lord the Attorney-General that if this time-honoured, legal remedy is to be done away with in this case, the burden of proof rests firmly upon the Government. Noble Lords have a dilemma because one does not want to give comfort to terrorists, but at the same time we must defend our liberties. Otherwise the terrorists have won. It is really up to the Attorney-General. If he wants the support of those who have open minds on this subject, he must convince your Lordships, including myself, that this is necessary and that there will not be inordinate delays if this remedy were left as it is. That is the crux of the problem.

Lord Corbett of Castle Vale: My Lords, I shall not detain the House for long, but I cannot sit here in silence and not voice my concerns about what I regard as the outrage that this Government seek to perpetrate. Under this Bill some awesome powers are to be given to the Home Secretary. I understand that this Bill is a response to the awful events of 11th September, but as my noble and learned friend has been told by your Lordships, SIAC was not set up for that purpose. When it was set up, the Government did not seek to exclude judicial review following its decisions. In a sense this is a double whammy. The Government propose to give powers to SIAC, which they did not intend to do originally, and under these proposals they seek to withdraw the judicial review route for those who feel offended by the decisions made by SIAC.

At Second Reading the Attorney-General spent a long time—for which your Lordships' House was grateful—arguing two points on judicial review. One was, as the noble and learned Lord, Lord Donaldson, said, that the SIAC procedure was a straight alternative to judicial review. A little later he said that in many respects SIAC was better in these particular circumstances. The noble and learned Lord, Lord Donaldson, has taken leave to disagree with the Attorney-General on that matter.

I put this point to the Attorney-General as a layman and not as a lawyer. If, as he argued, there is not that much difference between the rights of judicial review in these circumstances and the SIAC procedure, perhaps

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he will listen to the voices from around your Lordships' House on this point and respond by agreeing, even at this late stage, that it would be right to concede that judicial review should be available.

After the outrage of 11th September, the way to defend democracy is not to dismantle it; it is to strengthen it. Otherwise we shall have the ridiculous and ludicrous position of the Mother of Parliaments being asked to put its name to achieving some of the aims of those who carried out the events of 11th September.

Lord Thomas of Gresford: My Lords, the prerogative writs of habeas corpus, certiorari and mandamus have a lengthy history which, as my noble friend Lord Russell pointed out in Committee, precede Parliament. They are prerogative writs because the individual is able to utilise the power of the Crown to hold a Minister to account and to supervise the way in which inferior tribunals work.

The Government are happy enough to use the prerogative for themselves. They wage war in the name of the Crown. They use the prerogative over and over again to issue orders and directions. Those ancient writs are the one circumstance in which the individual can use the Crown against the Government and they should be maintained.

Lord Goldsmith: My Lords, we have had many debates on this topic. It was debated at Second Reading when I tried to answer the questions posed by noble Lords. I am grateful that noble Lords have acknowledged that. It was also debated in Committee. In normal circumstances, after such extensive airing of the arguments, I would not trouble your Lordships by repeating them, but I have been specifically invited by my noble friend Lord Clinton-Davis and by the noble Lord, Lord St John of Fawsley, to seek to persuade your Lordships why there is still much misunderstanding of what the Government seek to do. I shall take this opportunity to bring together the various points that I have made previously to explain why the Government remain of the view that the provisions in Clauses 30 and 31 are worth their place in this Bill.

This debate started in stark terms. I hope that it will be acknowledged that the debate has moved on. I hope that the noble Lord, Lord Thomas of Gresford, will forgive me for reminding the House that at Second Reading he said that the detainee has no opportunity to challenge the information that has been laid against him. That statement is fundamentally wrong and is critical to understanding the provisions in the Bill. It is not the case that a person who is detained has no avenue of redress.

As this debate concludes, I hope that it will be accepted and recognised overtly by noble Lords that this debate is not about the abolition of judicial review; that it is not about the setting of precedents in relation to other government departments; but that it is about the appropriate judicial review—I do not hesitate to

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use those words and I shall use them time and again—for such decisions. The appropriate judicial review for these proceedings is the SIAC route.

XJudicial Review", with a capital Xj" and a capital Xr", has a specific meaning in English law. It is a form of scrutiny by judges which, as the noble and learned Lord, Lord Donaldson, to whose experience I bow, has so clearly explained, is not a thorough-going review of the merits of the decision, but a limited form of judicial scrutiny. I want to spend a moment not just on that point, which is one of the reasons why XJudicial Review" with a capital Xj" and a capital Xr" is not the right route, but also on a fundamental point which needs to be understood fully in order to see why SIAC is the right route.

The cases concerned with this part of the Bill deal with a limited but critical category of people. I do not say that they are limited in order to underestimate the importance of what is being done. We are dealing with people who have no right to be in this country and whom the Home Secretary has the right to deport, but for one fact: he and the Government are too concerned about human rights to be prepared to send them back to a place where they may be shot or executed or tortured.

Noble Lords opposite have taken a different view. The party opposite has suggested that we should send these people back to their deaths. That is not something that we are prepared to do.

7.30 p.m.

Baroness Buscombe: My Lords, I simply want to say that we have never said that.

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