| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
6 Clause 17, page 7, line 17, at end insert—
X( ) Information may only be disclosed voluntarily under this section if the public authority concerned believes or suspects that the disclosure may be of information which directly or indirectly relates to a risk to national security or to a terrorist.
( ) Any request by a relevant public authority for disclosure of information under this section may only be made if it believes or suspects that that information may relate directly or indirectly to any risk to national security or to a terrorist.
( ) XRelevant public authority" has the same meaning as in Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) save that there is added thereto the Financial Services Authority and the Director of Public Prosecutions.
( ) XTerrorist" has the same meaning as in Part 4 of this Act."
The Commons disagreed to this amendment for the following reason:
6A Because it is not appropriate to limit the power conferred by this clause in the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A. I spoke to that when I spoke to Amendment No. 5.
Moved, That the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.—(Lord Rooker.)
[Amendment No. 6B, as an amendment to the Motion, not moved.]
On Question, Motion agreed to.
8 Clause 19, page 9, line 18, at end insert—
X( ) Information may only be disclosed voluntarily under this section if the Commissioners of Inland Revenue or the Commissioners of Customs and Excise believe or suspect that the disclosure may be of information which directly or indirectly relates to a risk to national security or to a terrorist.
( ) Any request by a relevant public authority for disclosure of information under this section may only be made if it believes or suspects that that information may relate directly or indirectly to any risk to national security or to a terrorist.
( ) XRelevant public authority" has the same meaning as in Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) save that there is added thereto the Financial Services Authority and the Director of Public Prosecutions.
( ) XTerrorist" has the same meaning as in Part 4 of this Act."
The Commons disagreed to this amendment for the following reason:
8A Because it is not appropriate to limit the power conferred by this clause in the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that this House do not insist on their Amendment No. 8 to which the Commons have disagreed for their reason numbered 8A, but do propose Amendment No. 8B in lieu thereof—
The noble Lord said: My Lords, I have already spoken to this amendment with Amendment No. 5. I beg to move.
Moved, That the House do not insist on their Amendment No. 8 to which the Commons have disagreed for their reason numbered 8A, but do agree with the Commons in their Amendment No. 8B in lieu thereof.—(Lord Rooker.)
[Amendment No. 8C, as an amendment to the Motion, not moved.]
On Question, Motion agreed to.
8B
Page 9, line 18, at end insert—
X( ) No disclosure of information to which this section applies shall be made by virtue of this section unless the person by whom the disclosure is made is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it."
21 Leave out Clause 30.
22 Clause 31, page 16, line 21, leave out subsection (2).
The Commons agreed to these amendments, but have made the following amendment instead of the words so left out of the Bill:
22A After Clause 35, insert the following new Clause—
XSPECIAL IMMIGRATION APPEALS COMMISSION
At the end of section 1 of the Special Immigration Appeals Commission Act 1997 (c. 68) insert—
X(3) The Commission shall be a superior court of record.
(4) A decision of the Commission shall be questioned in legal proceedings only in accordance with—
(a) section 7, or
(b) section 31(6)(a) of the Anti-terrorism, Crime and Security Act 2001 (derogation).""
The Attorney-General (Lord Goldsmith): My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22A.
Two amendments were made on Report relating to judicial scrutiny of actions by the Secretary of State and the Special Immigration Appeals Commission in connection with the certification and detention powers. The clause on Xexclusion of legal proceedings" was omitted, as was subsection (2) of the next clause, which confined an initial challenge to a derogation matter to SIAC.
These amendments—Amendments Nos. 21 and 22 on the Marshalled List—were accepted by another place yesterday, but in their place the Commons have substituted their own amendments, Amendment No. 22A and Amendments Nos. 22B to 22F on the Marshalled List.
We have had many detailed debates in this House about the appropriate form of judicial scrutiny for the powers in Part 4 of the Bill, during which we in the Government explained our position at some length. Before turning to the amendments presented to this House by another place, I ask the House to recall why SIAC was set up in 1997; namely, to deal with national security cases of the kind it will be considering under the Bill.
In its judgment on the Chahal case in 1996, the European Court of Human Rights stated in clear terms that the traditional remedies of judicial review and habeas corpus did not provide an individual with adequate protection in national security cases. SIAC was constructed specifically to remove those inadequacies. It does this as follows.
First, and most importantly, the legislation creating SIAC provides a mechanism by which both SIAC and a person working on behalf of the appellant—called a Xspecial advocate"—can have full access to the security information which the Secretary of State has seen and relied on in forming his view about the national threat posed by the appellant. That is something that is not possible under traditional judicial review.
Secondly, the membership of SIAC includes a High Court judge to give it the appropriate judicial standing. It also has a senior immigration judge and a lay member. It thus brings a range of relevant expertise to bear on any case.
Thirdly, the Bill provides that when hearing an appeal or review, SIAC will be required to take account of all relevant information, including information which comes to light after the date of the Secretary of State's decision. This ability to take account of new information does not apply to judicial review.
For all the above reasons we have consistently argued that SIAC is a more than adequate body to determine matters under Part 4. And since there is an existing route of challenge to SIAC's decisions on a point of law to the Court of Appeal and to the House of Lords, we have argued that those existing routes of challenge should be used for SIAC's decisions under the Bill.
As is clear from what I have said on previous occasions, I believe that there are, therefore, powerful arguments in support of our position that providing for traditional judicial review of decisions of SIAC would bring no benefits. I indicated my view that it would simply cause confusion as well as adding costs and delay for no good reason. So I am convinced that the policy intention reflected in the Bill as originally drafted was correct—that is, to confine legal challenges to a tried and tested bespoke system of justice which SIAC and the higher Appeal Courts provide. However, I accept that we should do more in the Bill, as we have in debate, to emphasise why this is the case.
That is what the amendments in lieu do. They have been devised following discussions that we have had with the noble and learned Lord, Lord Donaldson of Lymington—for whose assistance I want to express my thanks—and some discussions with the noble and learned Lord, Lord Mayhew of Twysden.
Under these amendments, the routes for judicial challenge of decisions under Part 4 would be channelled in the same way as set out in the Bill as introduced to Parliament, but in addition the amendments make SIAC a superior court of record. The title of Xsuperior court of record" has previously been bestowed on certain bodies, such as the National Industrial Relations Council and the Employment Appeal Tribunal. Having that status means that the decisions of such a body are a matter of public record and they are binding on any inferior courts. In those respects it puts them on a par with the Administrative Court.
Noble Lords will recall that when I last dealt with this matter, I indicated that by virtue of agreement between the Lord Chancellor and the Lord Chief Justice the judges who would be able to hear SIAC cases would be the same judges as those who sit in the Administrative Court—indeed all of them. That puts SIAC on a par with the Administrative Court.
Given the high quality of membership of SIAC, which includes a High Court judge, it is entirely right that SIAC should be conferred with that status as well. It helps to underline the point that a traditional judicial review of decisions of SIAC would simply be inappropriate. It would be a case of one High Court judge sitting in judgment on a body which has three members, including a High Court judge from exactly the same court. I suggest that what is important is that if there is to be an appeal it should be to more senior judges who sit in the Court of Appeal.
The amendments in lieu also describe what we are doing in more accurate terms. It states the manner in which decisions may be challenged—namely, a decision of the Secretary of State may be challenged only in SIAC, and a decision of SIAC may be challenged only by an appeal to the Court of Appeal—rather than referring to the exclusion of legal proceedings. The Bill does not exclude legal proceedings; it does not exclude judicial scrutiny. It sets out where the judicial scrutiny is to take place. I accept that it may be that the terminology previously used in the Bill has confused the picture, so we are grateful for suggestions on how to put that right and to make the position clearer.
I hope that your Lordships will find these amendments to be an acceptable response to the concerns expressed in earlier debates in this House, and will adopt them on that basis.
Moved, That the House do agree with the Commons in their Amendment No. 22A.—[Lord Goldsmith.]
4.30 p.m.
Lord Goodhart moved, as an amendment to Commons Amendment No. 22A, Amendment No. 22AA:
- 222A At end insert—
| Next Section | Back to Table of Contents | Lords Hansard Home Page |