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The Lord Bishop of Portsmouth: My Lords, I am grateful to the noble Lord, Lord Goodhart, for moving the amendment. It is very much in sympathy with some of the themes of the critique made of the Bill; namely, the function and workings of SIAC. The amendment will give SIAC more teeth and—if I may add to the imagery—not tie its hands behind its back too much.
Lord Rooker: My Lords, I should say at the outset, because we have a small group of amendments to deal with on Third Reading, that we have continued—right up until I came to the Chamber—to consider the issues raised in the House and by the Select Committee. While we do not necessarily agree with all the points made or all the amendments, that does not mean that we have not given them serious consideration.
This group of amendments relates to the operation of SIAC and the issuing of certificates. We agree with the intention behind Amendment No. 1, tabled by the noble Lords, Lord McNally and Lord Goodhart, but I hope that I can persuade your Lordships that it is unnecessary because the Bill already delivers the outcome that they seek.
The Special Immigration Appeals Commission is not exactly a high-profile body in the country at large, but we have given it a good airing. It has not just turned up. It is not created by the Bill. It was legislated for in 1997 by both Houses—by and large without dissent, as far as I am aware. So it is not a court invented for the purpose of the Bill; it is already in operation—although I accept that so far it has dealt with only three cases. It is indeed special and was set up to deal with a highly limited number of cases.
SIAC will be able—indeed, it is required—to take account of information post-dating the Secretary of State's decision at the review stage as well as at the appeal stage. That requirement stems from the wording in Clauses 25(2)(a) and 26(5)(a) respectively. Those provisions are identically worded and state that a certificate is to be cancelled if SIAC considers that there are no reasonable grounds for Xa" suspicion or belief. So on review, as well as at the appeal, SIAC will need to come to its own view as to whether there are reasonable grounds for Xa" suspicion or belief, and in doing so it will have regard to relevant information that has come to light since the original decision—including, where applicable, since the appeal or previous review.
I appreciate that the Joint Committee on Human Rights in its discussion at paragraphs 12 to 16 of its second report, issued a few days ago, may have come to a somewhat different reading of what the wording in the review provision means. But we are clear that the current wording does require SIAC to take account of all relevant information up to the time that it hears the review, and that it is compliant with Article 5(4) of the European Convention on Human Rights.
Amendment No. 2 would provide for the review procedure an additional ground on which SIAC could cancel a certificate. That would bring the wording more closely into line with that in Clause 25 relating to the appeal, although they would not be made identical. There is a reason why the two clauses differ. The provision in Clause 25(2)(b) of the Bill—namely that SIAC
- Xconsiders that for some other reason the certificate should not have been issued"—
Lord Goodhart: My Lords, I am grateful to the Minister for giving way. Is it not a distinct possibility that, in some cases, there could be a review when there has been no previous appeal?
Lord Rooker: My Lords, I hope that I shall be able to address that point. If I may, I shall continue but shall certainly return to that point.
There would be no scope for procedural irregularity in the making of a certificate to arise between the appeal and a review, or between one review and the next. We accept that SIAC would be able to cancel a certificate on review under the amendment only where
- Xthe certificate could not properly have been issued immediately before the review if it had not previously been issued".
I should also add that we believe that there is more than adequate opportunity for a person to make an appeal to SIAC, especially following the amendment that we made on Report enabling SIAC to hear out-of-time appeals in appropriate cases. We do not therefore think that an equivalent of Clause 25(2)(b) needs to be provided in Clause 26(5).
I now turn to Amendment No. 3, which returns us to an issue that we have previously debated: the circumstances under which it is open to the Secretary of State to issue a certificate under Clause 21 after SIAC has cancelled a previous certificate. The amendment identifies three exhaustive cases under which it would be open to the Secretary of State to re-make a certificate—provided, of course, that the other requirements have been met. They correspond to the cases identified by the Joint Committee on Human Rights. They also correspond to the list of potential circumstances that the Government mentioned in debate at an earlier stage of the Bill, although we also mentioned a fourth circumstance—namely, where a decision by SIAC to cancel a certificate had been overturned.
As I said in Committee, we fully understand your Lordships' wish to ensure that the Bill does not give the Secretary of State arbitrary power to reissue a Clause 21 certificate in defiance of a decision by SIAC to cancel the first certificate. We have continued to give thought as to whether an alternative formulation can be found to that currently in Clause 27(9), but, to be honest, we remain of the view that the current wording is the best.
We accept that the list provided in the amendment, possibly with the addition of the fourth circumstance to which I just referred of an overturned certificate, captures all the circumstances that we—and, I suspect your Lordships, otherwise there would have been more items in the list—can currently think of where it might be justifiable for a new certificate to be made. But there is always a risk in creating an exhaustive list that something that none of us have thought of will be overlooked, and we do not want to take that risk in this area.
Another approach, which was referred to in Committee or on Report, would be to delete Clause 27(9) and argue that the Secretary of State would be able to issue a fresh certificate in appropriate cases. But that carries risks, the greatest of which is that if the Bill is silent on the matter, the consequences would be uncertain. We therefore prefer to include the provision in the Bill.
We confirm, as we did in Committee, that the intention is that the Secretary of State will issue a fresh certificate only where that is justified. SIAC would take a dim view of any Secretary of State who seemed to be ignoring its decisions, and would, I am sure, cancel any inappropriately made future certificate in short order. It would clearly be in possession of all the facts and the reasons why the second certificate had been issued, and those reasons would have to be good.
Furthermore, it might well be a breach of Article 5(4)—and perhaps also of Articles 6 and 13—of the European Convention on Human Rights for the Secretary of State to take such a course without justification. So it would not just be SIAC that would take a robustly dim view of a Secretary of State acting irresponsibly and arbitrarily; it would be open to challenge by authorities outside SIAC under those articles of the ECHR, with which we of course want to comply. For those reasons I ask the noble Lord to withdraw his amendment, but I shall of course be happy to answer—or to try to answer—the question that follows.
Lord Lester of Herne Hill: My Lords, realising the procedural position that we are now in, I shall be brief in my question, but it is important to get the matter clear. The words Xor otherwise" are completely unfettered. That is the problem. As I understand it, the Minister said that although they are unfettered, they may well have to be read down—given some limited effect—in order to comply with the relevant provisions of the European Convention on Human Rights. But then he said that that may happen outside SIAC.
In order to be absolutely clear, will the Minister confirm that I am right in thinking that SIAC, as the Attorney-General has accepted, will be bound by the Human Rights Act to apply the European Convention on Human Rights; that SIAC will have all the powers of judicial review that a judicial review court will have; and that SIAC will therefore be able to ensure that the words Xor otherwise" are not used to authorise arbitrary detention? The Minister understands that I am putting the question because it ties in with the exclusion of judicial review.
3.30 p.m.
Lord Rooker: My Lords, exactly, and I believe that the noble Lord has got it right. As I suspect that I have caused apoplexy in the Box to my left, I must add that the words Xoutside SIAC" do not appear anywhere in my notes. The fact is that we want to be compliant with the European Convention on Human Rights. We have derogated from Article 5, using the procedures set out.
The noble Lord is right in saying that the words Xor otherwise" stand in the Bill but they are fettered in the way he has described. First, SIAC would take a dim view of a Secretary of State who without good reason simply issued another certificate after the first had been cancelled. Secondly, the Secretary of State in doing that, or in contemplating doing that, would be under legal advice from the Law Officers and others who would be involved in such cases, pointing out the high risk of possible breaches of Articles 5, 6 and 13 of the European Convention on Human Rights. That does indeed fetter the Secretary of State and, although it is not another limb as regards the words Xor otherwise", the fact that those words appear in the background means that the words are fettered in the way the noble Lord described.
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