| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
The noble Lord said: My Lords, in moving Amendment No. 22AA, I shall speak also to government Amendments Nos. 22A and 22B to 22F.
Amendment No. 22AA has been tabled largely for reassurance. I hope and indeed expect that the Attorney-General will confirm that legal aid and interpretation services will be made available to detainees on appeals and reviews before SIAC and on subsequent appeals.
The matter of substance is what is in the government amendments. A week ago today, your Lordships' House, by a large majority, which included several Members of the Government Benches, rejected the government proposals that were to exclude the right of detainees to apply to the High Court for judicial review of decisions of the Home Secretary and SIAC itself under Part 4 of the Bill. Now the Government have put
I believe that these amendments are mere window-dressing. The distinction between courts of record and other courts is obscure. It seems to me that historically courts of record were those whose orders were inscribed on parchment after they had been made. At present the only effective difference is that courts of record can sentence people for contempt and other courts cannot.
The effect of being a superior court of record, as opposed to a mere court of record, is a little more significant. The law recognises the principle that one superior court of record cannot review the acts of another. By making SIAC a superior court of record, the powers of the High Court to review its activities are necessarily excluded. The provisions of Amendment No. 22B, relating to the questioning of the actions of the Secretary of State only in proceedings before SIAC or on appeal from SIAC, therefore are superfluous because that is the automatic effect of making SIAC a superior court of record.
Amendment No. 22C declares that the derogation matters are the exclusive reserve of SIAC and cannot be questioned by judicial review. Therefore, it restores in that respect the exclusion of judicial review. In the real world the government amendments contain nothing that improves the position of the Bill as it was when it first came to your Lordships' House. Yesterday in the other place the Home Secretary was asked by Mr Robert Marshall-Andrews what was the point of making SIAC a court of record. He replied:
In fact, it makes matters a little worse because the effect of Amendment No. 22A is to exclude judicial review, not only from proceedings under this Bill, but also from the existing jurisdiction of SIAC. SIAC will be a superior court of record for the whole of its jurisdiction, which, as already explained, will prevent a review of its decisions by the High Court, whether they are in reference to its existing jurisdiction or to its new jurisdiction under this Bill.
I shall not go into the reasons why judicial review should be retained. Last Thursday they were fully argued, notably by the noble and learned Lords, Lord Mayhew of Twysden and Lord Donaldson of Lymington. Those arguments persuaded your Lordships to vote to retain judicial review over the proceedings of SIAC. I believe that there is no reason to go through those arguments again because they have not changed. Nothing in this amendment represents a real concession or changes the force of the argument that your Lordships heard a week ago. I regret that the noble and learned Lords, Lord Mayhew and Lord Donaldson, and the Conservative
Moved, as an amendment to Commons Amendment No. 22A, Amendment No. 22AA.—(Lord Goodhart.)
The Principal Deputy Chairman of Committees (Lord Brabazon of Tara): My Lords, the original Question was that this House do agree with the Commons in their Amendment No. 22A inserted into the Bill in place of words left out of the Bill by Amendment Nos. 21 and 22 to which the Commons have agreed. Since when an amendment has been moved to insert the words as printed. The Question is that Amendment No. 22AA be agreed to.
Lord Thomas of Gresford: My Lords, what appears to be so daft about these procedures is that they apply only to people who come to this country without a right of abode and without any right of entry. So these provisions do not apply to citizens of the Irish Republic, nor do they apply to citizens of other countries who have a right of abode in this country. That means that if any such persons are suspected of being terrorists they will not be dealt with under this immigration procedure; the only way in which they can be dealt with is through the normal court procedures of charge and trial.
As secret information will be involved, the usual procedures that take place in courts will be employed; namely, that public interest immunity will be claimed; that the proceedings will be held in camera; and that there will be screens or methods, such as videos, employed to ensure that the identity of witnesses who give evidence is not known. That will happen with anybody except that limited class of people who are in this country but who have no right of abode here.
The procedures distort the SIAC system, which was brought into being for the purposes of immigration, not for the purposes of detention without trial and the apprehension of terrorists. That is what is wrong with them. Because of that distortion, we have the ridiculous situation of the commission being bumped up to be a court of record, equivalent to the High Court, thereby preventing judicial review by a mere piece of window dressing. I respectfully submit that the provisions are a disgrace.
Lord Donaldson of Lymington: My Lords, in a sense I have to declare an interest in the amendments because the noble and learned Lord the Attorney-General was kind enough to engage in wide ranging and long discussions on the problem that had arisen. As I saw it, the problem was that unless we could do something new, we were faced with a highly damaging conflict between the two Houses. If that conflict was necessary, we would have it, but it should be avoided if possible.
As I understand it, the background is that each House was convinced that its approach to the problem was the only way forward and that, if only the other House properly understood what it was at, it would
Something different was needed—I call it an accommodation, although that may not be the right word—whereby the whole matter was re-jigged in a form that met the full requirements of both Houses.
To explain that a little more, let me outline briefly the attitude of the two Houses. This House was strongly of the opinion that there could be no ouster of the judicial review jurisdiction of the High Court, which is and has been for centuries the ultimate constitutional safeguard against the abuse of power by those in authority. It was certainly not acceptable that, for the first time in history, judicial powers of review should be conferred on a court of inferior jurisdiction. I do not use the word Xinferior" in any pejorative sense—I am merely referring to a court that is not a superior court of record.
Secondly, this House thought that that refusal did not conflict with the Government's aim of retaining the involvement of SIAC if the actions of the Secretary of State were called into question. If the actions of SIAC were called into question, the High Court would, without doubt, have used the special procedures contained in the 1997 Act to safeguard the interests of the security services and of national security.
Lord Donaldson of Lymington: My Lords, the noble and learned Lord should not get too excited. I am describing the view of the House, not his view. If SIAC overstepped the mark, it could and would be dealt with using special procedures by the High Court.
The Government's approach was different. I pardon the infelicity of what they were saying, but their approach was that no court other than SIAC could be relied on to preserve the secrecy of intelligence material provided by the security services if it became concerned with issues other than law. Secondly, they expressed the view that SIAC must be free from all supervision by the High Court, and therefore judicial review must be ousted. That relates to the security issue; the Government were not merely favouring SIAC. The Government's final point was that any other approach could cost lives. It may not be likely, but it could happen.
Against those two conflicting approaches, the noble and learned Lord the Attorney-General and I looked to see what building blocks were available to produce an accommodation. First, there was the building block that no superior court of record can be judicially reviewed. I add anecdotally that the late Mr Justice Megarry was minded to do that when I was president of the National Industrial Relations Court. I rang him up and pointed out that the issue was rather important and he could not do it. He fully accepted that.
Secondly, the High Court is not the only superior court of record. The noble and learned Lord the Attorney-General has mentioned the NIRC and the Employment Appeals Tribunal. I think that I am right in saying that he could also have mentioned the Restrictive Practices Court.
The question then arose: why not make SIAC a superior court of record? Like the High Court, it would be subject to all rulings, in all respects of any jurisdiction that it was exercising, by the Court of Appeal. The High Court, in its ordinary jurisdiction makes rulings that the Court of Appeal can look into and overrule. There is no problem with that. So why not make SIAC a superior court of record? I should not like that to happen on a wide scale. It is an exceptional action, but it is justifiable in this case because of its similarity to the administrative division of the High Court. After all, by arrangements of which we were told earlier, it will always be presided over by not only a High Court judge, but a specialist judge appointed to the administrative court who is skilled in and familiar with judicial review.
It has to be said straightaway that a superior court of record does not automatically achieve judicial review jurisdiction, still less does it become part of the High Court, as I heard suggested on a televised programme of the proceedings of the other place.
The next building block is to confer a limited—I stress that word—judicial review jurisdiction on SIAC in order that it might exercise that jurisdiction in respect of the Secretary of State or anybody else who was concerned. That produces concurrent jurisdiction between the High Court and SIAC.
Given that situation, I see no reason why Parliament should not express the view that, of the two concurrent jurisdictions, one should be concerned with SIAC matters. That is what has been done.
Using those building blocks, we arrive at the situation in which SIAC shall be a superior court of record, given both an appellate and a judicial review jurisdiction. As between SIAC and the High Court, SIAC shall deal with matters arising within its own sphere, as judged by its constitution and the Acts relating to it. SIAC shall be answerable to the Court of Appeal under Section 7 of its own special Act and, in relation to derogation, under Section 31(6)(a) of this Act. That seems to meet the requirements of both Houses without either House having to surrender its strongly held view.
I should mention one other matter. There was some criticism in the other place about the fact that SIAC's appellate jurisdiction would be limited to questions of law. However, as all questions of judicial review on appeal involve questions of law, there will be an unfettered right of appeal in that respect. As for true fact, in my view—although perhaps not in the view of some litigants—one of the glories of the English law is that the idea of a question of law is extremely elastic. For a start, it includes the question of whether there is no evidence of fact; and it may go rather further than that if there is, for example, only a scintilla of evidence.
There is another reason why I have no problem with the proposals. Although I have not done the research that I should perhaps have done, experience teaches me that, when it is a second appeal, there are a number of statutory provisions that limit rights of appeal to questions of law. In this case, the Secretary of State will make what is essentially the original trial decision, after which there may be an appeal to SIAC. The appeal from SIAC to the Court of Appeal is a second appeal. There is nothing very remarkable about that.
I hope that the accommodation approach that I have just outlined will also help to address the point which was raised on Report by the noble Lord, Lord Lester, on satisfying the European Court of Human Rights, and the Council of Europe if it is involved, that we are not departing unnecessarily from the principles that it seeks to support.
Finally, I hope that I shall be acquitted of being a window dresser. I have never been very good at it.
X(5) Rules made under section 5 shall make provision for access to such advice, assistance and representation (including the provision of translation and interpretation services) as the interests of justice requires in connection with proceeding before the Commission, to be funded as part of the Criminal Defence Service established by the Access to Justice Act 1999 (c. 22)."
XIt establishes . . . the position, the status and the record, which can be carried forward".—[Official Report, Commons, 12/12/01; col. 919.]
I regard that as a fairly accurate summary of the effect of Amendment No. 22A in that it is essentially meaningless.
4.45 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page