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Lord Goldsmith: My Lords, because judicial review could not do what we want it to do. It could not review the very evidence on the basis of which the order is made.

In Chahal, there was an attempt at judicial review. The gentleman concerned had been detained for a period—a long period, as it happens. He had gone for judicial review, but the judicial review court—I hope that I am correct; the noble Lord, Lord Lester of Herne Hill, will correct me if I am wrong—said the following. XWe cannot look at the information on the

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basis of which the Secretary of State has formed the view that you are a security risk. Therefore we have to decline judicial review." The European Court of Human Rights judgment said that,

Xthe availability of judicial review and habeas corpus to review the decision to detain Mr Chahal before the domestic courts did not satisfy the requirements of the European Commission on Human Rights",

because it did not provide a fair trial.

Lord Lester of Herne Hill: My Lords, I entirely agree with what the Attorney-General has said. What I do not understand is what harm it does to retain judicial review for the one in 100—perhaps one in 1,000—cases in which someone seeks to challenge something and the SIAC has no jurisdiction.

Lord Goldsmith: My Lords, I hope that the noble Lord will permit me to reach that point, because I should like first to finish what I was saying on my first point. Despite what was said in Committee, it is still being suggested—unfairly, I respectfully submit—that what is being proposed by having the SIAC review in some way prevents judicial review of the Secretary of State's decision.

Despite what some noble and learned Lords have said, I stand absolutely unrepentant. Let me summarise the ways in which SIAC provides concrete advantages that judicial review cannot. First, it can have access to all the information that the Secretary of State has; judicial review cannot. There is the special advocate arrangement, under which that evidence can be tested in the interests of the detainee. That is a critical safeguard—as I hope that noble Lords will agree—that the judicial review route does not provide.

Secondly, the SIAC will be able to take account of information that comes to light after the Secretary of State issues his certificate. As the noble and learned Lord, Lord Donaldson of Lymington, said, judicial review is not concerned with the merits; it is concerned with the authorisation at the time the decision was made. The Bill is clear. The SIAC will be not only asked but required to consider material at the date of the hearing. Judicial review does not do that.

Thirdly, the SIAC contains a range of expertise—specialist immigration and security information—that a judicial review tribunal would not normally have. It will have a High Court judge.

Lord Clinton-Davis: My Lords, why can we not have judicial review as a long stop?

Lord Goldsmith: I am coming to that second point. The first point is that it is so unfair to criticise the Government for proposing detention without trial and for not allowing judicial review and scrutiny when what we want is a procedure introduced precisely to deal with the problem that will enable a full review of the information.

What is it that that judicial review would add? Let it be accepted—I hope that it is throughout the House—that SIAC will be a much better method of reviewing such decisions than ever would be XJudicial Review",

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with a capital Xj" and a capital Xr". As I say, your Lordships do not have to take our word for that; that is what the European Court of Human Rights said. As the noble Lord, Lord Lester of Herne Hill, said, the SIAC procedure was introduced because it was argued for in the Chahal case by Amnesty, the AIRE Centre and the Joint Council for the Welfare of Immigrants. It has subsequently been referred to with approval by the ECHR. In what circumstances would judicial review apply where SIAC does not?

One point that has been raised today with which I want to deal immediately concerns the letter that I sent to the noble Baroness, Lady Buscombe, following her request. I am grateful that she acknowledged that my letter was intended to be helpful. She had raised the question: will there be an appeal to the Court of Appeal on a point of law where there is a procedural irregularity? First, I said that in my view, the better view was that there would. She asked for clarification; I confirmed, unequivocally:

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 what happens with employment tribunals, for example. There is only an appeal on a point of law to the employment appeal tribunal, but if there is a procedural irregularity, that can be a point of law that gives an appeal. I went on to say, and in the light of the debate that then took place perhaps I should have thought more carefully about one of my words:

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 will depend on a range of factors, such as the nature and materiality of the error in question".

I intended by that to say, simply, that there will be cases of procedural irregularities that are so immaterial that no appeal would be granted. Rather than say that no appeal will lie on a point of law, what I meant and should have said was that no appeal will succeed on a point of law. That is all that I meant, and I hope that that clarification helps the noble Baroness.

Every noble Lord who has spoken has said that in 99 cases out of 100, SIAC would be involved. I suggest that no realistic example has been given of a case where judicial review would add something that SIAC does not have.

Perhaps I may remind noble Lords of two points. First, there is an appeal from the SIAC to the Court of Appeal. It is on a point of law, but it is an important appeal. And of course there is an appeal from the Court of Appeal to the Judicial Committee of this House. In those circumstances, is it appropriate that there should be a judicial review of the SIAC? Would it not make more sense that if there were to be another judge looking at what the SIAC did, if that was the point, it was not a judge of the same level—that is, another High Court judge—but the Court of Appeal? That safeguard exists.

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Secondly, the noble and learned Lord, Lord Donaldson, referred to Clause 30(3). That is the only example put forward by noble Lords in which there might be a judicial review where SIAC would not apply. It provides that:

XA certificate of the Secretary of State that specified action is taken in reliance on section 22 or 23 shall be conclusive of the matter certified".

The absence of judicial review in relation to that does not create a problem because if the Secretary of State issues a certificate under Section 21—and that is the key to these powers—it is subject to review by the SIAC. If the SIAC cancels the certificate, the Secretary of State can do no more. He cannot move on to Sections 22 and 23. Therefore, the key point is the certificate which is issued by the Secretary of State. It is the reasonable belief that the person is a threat to national security—a reasonable suspicion that that person is an international terrorist—and that is subject to the SIAC review. The action or the deportation order is subject to appeal under the existing immigration law.

Lord Brittan of Spennithorne: My Lords, will the noble and learned Lord explain why, if the system of SIAC is so comprehensive and able to deal with everything and if a judicial review will not in practice lie or ever be used, it is necessary to remove what is a hallowed procedure and is part of our constitution? Is it just tidy-mindedness or is there some other motive behind it? What is sauce for the goose is sauce for the gander. If there is no point in judicial review, why is there any point in removing judicial review?

Lord Goldsmith: My Lords, I shall answer the noble Lord's question, but this Government have introduced something which the previous Conservative government did not; that is, a procedure, SIAC, under which a review of the evidence can take place. There are many examples of specialist courts where the view has been taken that that is the route by which certain matters should be dealt with.

I mentioned on a previous occasion the Bill of Rights, the British Nationality Act and the RIPA, but I could have mentioned the Supreme Court Act 1981. That provides in Section 28 that certain decisions of the Crown Court are not subject to judicial review. The procedure is not such an unusual event; this is not an abolition of judicial review. It is a recognition that judicial review and habeas corpus provisions do not provide an adequate remedy. I say with all respect to the noble and learned Lord, Lord Mayhew, that the procedure is not a precedent for other departments because it does not take away judicial review of executive decision. It puts in place a different judicial scrutiny mechanism.

The inclusion of judicial review as well would merely create confusion about the routes of challenge which are available and cause delay and unnecessary expense. I would ask noble Lords to bear in mind the following. It is often said that one cannot put a price tag on justice, but one cannot use that philosophy to justify the unproductive use of people's time which

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does not promote justice in any way. The opportunity cost principle applies to all walks of life, including the law. And if the lawyers and the courts are tied up in unnecessary judicial review applications, they cannot be doing other things which are more beneficial to the cause of justice.

I am as firm a supporter of judicial review as other Members of this House.

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