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Lord Clinton-Davis: My Lords, on the last occasion when this matter was debated by this House, I agreed with the noble and learned Lord, Lord Donaldson, and I took the view that the Government should make material concessions. I believe that they have done so. I thank those who were responsible for achieving that. It is not the first time that I have agreed with the noble and learned Lord. He has the misfortune of knowing that I agree with him also on this occasion.
I think that it would be churlish not to thank the Home Secretary for listening very carefully to what we had to say. It is not that we want to score a success against the Government. I am concerned about the state of the law, and I know that the noble and learned Lord, Lord Donaldson—who speaks from a rather superior position—is concerned about that too. I thought that there was a terrible anomaly in the current position. I therefore end where I began, by thanking the Government for carefully taking note of what was said in this Chamber and acting accordingly.
Lord Mayhew of Twysden: My Lords, I think that the whole House will be grateful for that expression of helpful opinion by the noble Lord, Lord Clinton-Davis, who spoke very passionately a few days ago on Report. I think that the whole House will also think, as I do, that it was very helpful of the noble and learned Lord, Lord Donaldson, to try so constructively to find an accommodation. I supported him while he was engaged in the process and I am very glad to support him now, for whatever value that may have.
I am also extremely glad that, in consequence, the Government have moved on the issue of judicial review. The question is whether, in their own amendments which were passed last night in another place, they have moved far enough to satisfy the declared objections to former Clauses 30 and 31, which this House removed a few days ago.
What were those objections? I can summarise them very briefly. First, SIAC was not a court but a commission. Secondly, as a commission, it did not have all the power that the High Court would usually have to submit a certification by the Home Secretary or a derogation to judicial review; on one view, it had no power to do that. Thirdly, any irregularity in the commission's procedures could not on complaint be subjected to judicial review, as it could not review itself. Fourthly, to oust judicial review from the exercise of any authority's power that is usually susceptible to judicial review was a bad precedent to set ourselves, and one that was all too likely to be followed in future. Finally, the defence of the country in the present emergency revealed no need for such provision.
How do these amendments measure up? Your Lordships have a very heavy time ahead of you today and tonight, and I do not think that it is your Lordships' wish that I should seek to improve on what has been said by the proposal's principal author and progenitor, the learned and noble Lord, Lord Donaldson. I am very content to adopt, with respect, his comments on his building blocks and the accommodation that they achieve. It was a very helpful intervention and I shall not seek to diminish its beneficial effect by delaying your Lordships.
Lord Lester of Herne Hill: My Lords, the noble and learned Lord, Lord Donaldson, was kind enough to mention my previous comments. The Attorney-General and the House will know that I have consistently said that I am in favour of the Special Immigration Appeals Commission as an independent and impartial tribunal established by law. I have also taken the position, which I believe is the position in law, that the Special Immigration Appeals Commission is bound by the Human Rights Act 1998 to ensure a fair procedure under Article 6 of the convention, as is the Court of Appeal.
It seems that the Home Secretary made a very important statement yesterday evening, but I should like the Attorney-General's confirmation—although I see that his mind is on another matter—that those comments represent the Government's position. The Home Secretary said:
- XSIAC as a superior court of record and administrative court . . . will provide the equivalent of judicial review".—[Official Report, Commons, 12/12/01; col. 919.]
Does that mean that SIAC will have all the powers that are held by a normal judicial review court? As I understand it, it was on that basis that the Home Secretary went on to say that Law Lords and Xex-Law Lords"—which I take to be a reference to the noble and learned Lord, Lord Donaldson—were and are satisfied with the proposal.
If it is correct that the Government accept that SIAC—which should be renamed a special immigration appeal tribunal, because that is what it is—is to have all the powers of a judicial review court, and given the Human Rights Act and all its consequences, the position has changed profoundly.
As my noble friend Lord Goodhart indicated, in one respect the amendment now before us removes normal judicial review further than when we last considered the matter. It now applies to deportation orders under the 1997 Act as well as detention and certification. I understand why: it is to produce consistency which would otherwise not be there.
I shall be grateful, therefore, if the Attorney-General will confirm that what the Home Secretary states and what the noble and learned Lord, Lord Donaldson, understands to be the position, really is the position. That will make a considerable difference to my attitude to these matters.
Finally, if my noble friend will forgive me, it follows from what I say that I do not now agree—nor have I agreed during these debates—with what my noble friend Lord Thomas of Gresford said. We look at this through different eyes, perhaps because of our previous legal background. But as a public lawyer I am not as affronted as he is by SIAC; on the contrary.
5 p.m.
Lord Corbett of Castle Vale: My Lords, first, I echo what was said by my noble friend Lord Clinton-Davis. I thank the Attorney-General and the Minister for not only listening to the voices throughout this Chamber on judicial review, but also for listening to the voices in the other place. And not simply listening, but also finding a way in which to respond.
Secondly, I hope noble Lords on the Liberal Democrat Benches will think carefully about this matter. The accommodation explained by the noble and learned Lord, Lord Donaldson of Lymington, means that no one loses in either this place or the other place. It is an accommodation and an honourable accommodation. The Government should be thanked for it.
Earl Russell: My Lords, speaking from the Liberal Democrat Benches, but for the moment only for myself, I respect the principle of accommodation and I respect the need for it. The question is how far the accommodation will be effective.
When I spoke on this issue at Second Reading and in Committee, I had two specific concerns. One was that just expressed by the noble and learned Lord, Lord Mayhew of Twysden: that if we had an ouster of judicial review in one place, we would soon get a precedent which would be regularly repeated; in fact the Government would have set up a young lady of Spain, ready to do it not once, but again, and again and again.
On that we may possibly regard what happened as a draw, which is an honourable result. But the trouble with draws is that they tend to be followed by replays. If, when the noble and learned Lord the Attorney-General replies, he can give us an assurance that this particular draw is one that is not expected to be followed by a replay, I would find that extremely helpful.
My other anxiety, to which the Attorney-General has not yet fully given his mind, is the restrictive nature of the appeal allowed under SIAC procedure as limited by Clause 34(3) of the original Bill—the strict confining of the appeal to the matter of certification; the inability to look at the asylum claim in the round. I noticed in today's The Times Mr Ruud Lubbers, of the UN High Commission for Refugees, expressed considerable concern about the growing climate of hostility to asylum seekers throughout the world. That is something of which this country cannot be innocent. So to set up an appeal system which is not able to examine the asylum claim and is therefore unable to examine the proportionality of the certificate, may restrict justice.
I hope that the Attorney-General can tell me, before anyone has to take a decision, whether that elevation of the status of SIAC empowers it to consider material facts other than those in the certificate. I know he will say that it concerns only people who have no right to be in this country. But this is the most unreliable part of the whole of the decision-making machinery of the British Government—and that is saying something. So decisions taken about asylum should not be taken without the possibility of review, and the circumstances which give rise to the asylum claim should be looked at at the same time as the circumstances which give rise to the certificate. What conclusion that should lead to in any specific case one cannot say. But if the noble and learned Lord were able to help me on that point, I would find that very material and be extremely grateful.
Lord Brennan: My Lords, To show particular restraint as to one aspect of this Bill does not involve any lack of resolve in supporting its general objectives. The specific restraint shown by the Government on this occasion is to preserve what many lawyers will feel to be the need for the rule of law in every aspect of national life, including security.
During the course of these debates noble Lords have shown considerable patience and understanding towards lawyers. I shall continue to show that patience towards my learned friends on the Liberal Benches, but not I am afraid on this occasion any understanding. This change in the Bill is welcome for three reasons, which go beyond the rather technical analysis—important though that is—that we have heard thus far.
The first is that judicial review, as the noble and learned Lord, Lord Donaldson, said, is the ultimate constitutional safeguard between the people and the state and should always be so. That is for our nation. Secondly, by the end of this year or early next year all member nations of the United Nations will report to the Security Council on the steps that they have taken to combat terrorism. This Bill will be looked at as an exemplar for other countries to copy. It is essential that those countries see in it and recognise the value of judicial review as a constitutional and justice safeguard in their systems.
I cannot emphasise that too much. Travelling the world as we lawyers do, we see that it is to this country that countries look to produce just law. This Bill, when it becomes an Act, will be pored over by countries throughout the world.
The last reason why this matter is important beyond the current debate is that it gives protection. In the Second World War, in the United States, noble Lords will remember the internment of any Japanese citizens of America who were Japanese by ancestry rather than by birth. The Supreme Court upheld the internment. But many years later they were given justice. I should like to read a sentence from the judge who acknowledged what had gone wrong. He said,
- XThis case stands as a caution that in times of distress and international hostility and antagonisms, the shield of military necessity and national security must not be used to protect governmental action from close scrutiny and accountability [at all times]".
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