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Lord Goldsmith: My Lords, I have absolutely no desire to be disagreeable today. The fact is that at Second Reading the point put forward, which has been made elsewhere by the main opposition party, was that the route the Government should take is not to detain those that we cannot deport, but to get them out of the country by withdrawing from the convention on human rights. Then they would rejoin but exclude Article 3. Article 3 is the obligation that we want to hold on to. It precludes us from sending people to places where they may be killed, executed or subjected to torture. That is not something we are prepared to do. So we are talking about people—
Lord Lester of Herne Hill: My Lords, I am sure that the Attorney-General will agree with me that that was never the position of the Liberal Democrats.
Lord Goldsmith: My Lords, that is absolutely right. I commend the Liberal Democrats on that.
Baroness Buscombe: My Lords, we made that point on the understanding that there would be a prescribed list of countries which would be kept by the Home Secretary. I made that very clear at Second Reading.
Lord Goldsmith: My Lords, the record is the record and noble Lords can consult it. The fact is that,
prescribed list or no, as the noble Baroness suggests, there are people in this country who there are reasonable grounds to believe are a threat to our national security, who are international terrorists, and who have no right to be here; but we will not and cannot deport them because there is no safe place to send them. That is the category of person with whom we are concerned. The question is: what will be the judicial scrutiny of the decision made by the Home Secretary to this limited but still important category of people who fit into that description? I give way to the noble Earl.
Earl Russell: My Lords, I am most grateful. Can the noble and learned Lord qualify or reconsider something that he said a moment ago? He said that we are dealing with people who have no right to be in this country. In many cases that may be so. I am aware of Section 33(2) of the UN convention. But since SIAC cannot examine the asylum claim, it cannot judge the proportionality of the certificate.
The noble and learned Lord may have seen in last Sunday's Observer the report of members of the Zimbabwe opposition being returned to Zimbabwe and denied asylum. He may be aware that Mr Mugabe has a somewhat unusual definition of Xterrorists". One would like to be certain that should any of these enter into a certificate they could be checked.
Lord Goldsmith: My Lords, the Government have made their position very clear. That goes for those covered by the later clauses in the Bill, which we are not debating with this amendment. There are two points. The first is that the only category of persons to whom the detention powers relate would be those in respect of whom valid deportation orders have been made but we cannot deport them because of a practical problem, or because it would mean sending them back to a country where they would not be safe.
That is true—I say to the noble Earl, Lord Russell—in relation to the later clauses also where certain people, in accordance with the Geneva Convention, are not entitled to asylum status. We will still not send them back if they cannot be sent to a safe place.
Lord Avebury: My Lords, does the noble and learned Lord think that people who are sent back to Zimbabwe are immune from torture and execution?
Lord Goldsmith: My Lords, I have visited that country. That is not the issue today, with respect to the noble Lord, Lord Avebury.
There is already a power in relation to the deportation order, which will continue to exist. But that can be challenged. This provision does not affect that. That power exists. There has to be a deportation order, which is itself subject to judicial scrutiny and appeals. I recognise that there are occasions where someone may say, XGoing back to this place is not safe for me" and the Government take a different view. That is an issue that can be determined by the Immigration Appeal Tribunal or by SIAC.
The problem that arises is that we are dealing with a category of persons who are believed to be international terrorists and a threat to national security. The strong likelihood is that the key evidence which supports that view will be sensitive intelligence information. That is information which has been obtained by undercover sources, by intercept communications and by other covert methods which have been employed in order to protect the security and the people of this country.
The Secretary of State wants to make a decision to grant a certificate on the basis of that evidence. We could take two views in relation to what we then do. We could say, because it is sensitive intelligence information, that we do not want anyone to see it; therefore, we shall not allow anyone to review it and the Secretary of State's decision will stand. That is not the route that the Government have taken. We want that evidence to be reviewed by a judicial body. However, we cannot have it reviewed by the traditional, classic judicial bodies because there is no procedure under which that sensitive security information can be protected.
Why not? The noble and learned Lord, Lord Donaldson of Lymington, referred to a case. Of course there are cases where hearings take place in camera. But they take place in camera—I am sure that the noble and learned Lord will confirm—with the applicant present and able to hear all the evidence.
We are concerned with a situation—I gave the example in Committee and I shall weary your Lordships by repeating it on one further occasion—where this person is suspected of being an international terrorist because of a conversation which took place on, say, 24th June. We know about that because the source was a deep cover intelligence officer masquerading as one of these people. If we say to the applicant, XThe reason that we believe that you are an international terrorist is because on 24th June you said this", that immediately gives the game away. It threatens the life of the source; it compromises our national security; and it prevents that person from continuing to protect each and every one of us against a further threat.
SIAC was invented because our existing XJudicial Review" with a capital Xj" and a capital Xr" is inadequate to deal with that situation. That is why we lost the Chahal case. We cannot show the information to the traditional standard court because that court has no method by which it can examine that information without also revealing it to the individual.
SIAC is a body headed by a judge, a judge who sits in the judicial review court. I have made that point before. This is a judge who is used to, equipped for and experienced in judicial review. There is that judge, another judge experienced in immigration matters and a lay person. One can then say, XWe now have a procedure which can look at this sensitive information. We will give you all this information on which the Secretary of State relies. You can review it all". The judicial review court could not do that. We must protect the position of the applicant. How will his
interests be represented? It is important that, from his point of view, the information is challenged where it can be. We cannot tell him that that conversation took place on 24th June, for the reason that I have given. What we can do—this is what the SIAC procedure does—is instruct an experienced barrister, whose job it is to represent the interests of the appellant, to cross-examine the witnesses and to see all the information. In that way, we provide a means by which the sensitive intelligence information can be reviewed judicially.
Lord Donaldson of Lymington: My Lords—
Lord Thomas of Gresford: My Lords—
Lord Donaldson of Lymington: My Lords, as the noble and learned Lord was kind enough to summon me by name to answer this point, perhaps I may be allowed to do so, despite the rules—with the leave of the House.
The High Court—and the Court of Appeal—has inherent jurisdiction to make any rules that it likes, or, rather, that it thinks necessary, for the purposes of justice. It could therefore adopt the whole of the SIAC rules—and I would expect it to do so. If I had not passed my sell-by date and was still there, I would certainly have arranged for that to happen. That is perfectly open to it. It can go further, if anyone wants it to, but the SIAC rules would be enough for the Attorney-General's purpose.
Lord Goldsmith: My Lords, before the noble Lord, Lord Thomas of Gresford, rises, may I tell the noble and learned Lord, Lord Donaldson of Lymington, that I am grateful for his intervention. The body that we would be left with would be the SIAC. The rules would be that there would be a judge, ability to review the information, and opportunity for the appellant's interests to be represented by counsel produced to examine the material. That is fundamental. There would be a special advocate—in the extraordinary situation of a court considering information that one of the parties could not look at, that would have to be done by way of a special advocate. That would be the SIAC.
Lord Thomas of Gresford: My Lords, will the noble and learned Lord kindly explain what is the problem with having a co-existing judicial review with SIAC? That is the key question.
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