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Baroness Buscombe: My Lords, I shall be extremely brief. On behalf of Her Majesty's Official Opposition, I am grateful to the noble and learned Lord the Attorney-General for clarifying the position and for bringing forward their Amendment No. 22A. I am also extremely grateful to the noble and learned Lord, Lord Donaldson of Lymington, and my noble and learned friend Lord Mayhew of Twysden for assisting the Government in developing consensus on this difficult and important matter.
Also, I agree with the noble and learned Lord, Lord Donaldson of Lymington, that we view this approach as an exceptional action and one that we would not wish to entertain other than on that basis. It gives me pleasure to support the government amendment.
Lord Goldsmith: My Lords, I shall deal first with Amendment No. 22AA in the name of the noble Lord, Lord Goodhart, which is an amendment to my Amendment No. 22A. That amendment seeks to put into the Bill particular words relating to legal assistance. Section 5 of the Special Immigration Appeals Commission Act 1997 already provides that,
- XRules under this section shall provide that an appellant has the right to be legally represented in any proceedings before the Commission or an appeal under section 2".
This Bill also provides that Section 81 of the Immigration and Asylum Act 1999, which relates to grants to voluntary organisations to assist persons who have rights of appeal under that Act, shall be treated as including a reference to suspected international terrorists. The Bill also provides that SIAC may adopt the rules as it considers necessary. I have referred to that before. Therefore, I can assure the
noble Lord that a detained individual will have adequate access to legal advice. I can further assure him that adequate arrangements will be made to ensure that the detained individual is fully aware of the disclosable case against him, as indeed is the case in other immigration-related appeals.I turn to the specific reference that the noble Lord proposes as regards the criminal defence service. I suggest that that is an inappropriate proposed reference for this reason. The Access to Justice Act 1999 identifies the purpose of the criminal defence service as securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation of their interests. Criminal proceedings are defined in the Act and would not include the SIAC proceedings.
The power to fund the criminal defence service rests not with my right honourable friend the Home Secretary, but with the noble and learned Lord The Lord Chancellor. I hope that the assurances that I have been able to give will at least satisfy the noble Lord as to the substance of his proposed amendment. It does not appear to us that there is need for any of it to appear on the face of the Bill.
I turn briefly to Amendment No. 22A. I may have misunderstood the noble Earl, Lord Russell. There is no question of a replay in the sense of another place disagreeing with this amendment because it has already been accepted there and brought forward to us. If the amendment is now accepted, that is the end of the matter.
I am very grateful to those noble Lords who spoke in this debate, particularly my noble friends Lord Clinton-Davis, Lord Corbett and Lord Brennan. I acknowledge their remarks and thanks to my right honourable friend the Home Secretary. I have already given—but I do so again—my thanks to the noble and learned Lord, Lord Donaldson of Lymington. He has clearly explained why this is a justifiable amendment to make and why it is a sensible way of achieving the ends that both Houses want.
I come now to the dissenting voices of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. The noble Lord, Lord Lester, said that he did not agree with the noble Lord, Lord Thomas of Gresford. I have not agreed with the noble Lord, Lord Thomas of Gresford, throughout the debate on this clause. He has consistently taken the view that it is somehow possible to use the public interest immunity route in order to deal with the problem. I have consistently said that that is not a way for getting the matter before the court.
5.15 p.m.
Lord Thomas of Gresford: My Lords, is not that the way in which people who have a right of abode in this country or citizens of the Irish Republic will have to be dealt with because they will not come under this procedure?
Lord Goldsmith: My Lords, this procedure does not apply to them, so the issue does not arise. There is no
point in continuing the debate with the noble Lord, Lord Thomas of Gresford, because we will continue to disagree. I am grateful that the noble Lord, Lord Lester, has made clear his agreement, as he has done previously, with the fundamental position that SIAC is appropriate.
Lord Lester of Herne Hill: My Lords, will the Attorney-General deal with the specific question that I put to him, which will determine my attitude? Is there any difference between what is now proposed and judicial review?
Lord Goldsmith: My Lords, the noble Lord must be patient. I am coming to that. The noble Lord, Lord Goodhart, described it as window dressing and not of the real world. The real world is the one that we were in where it was recognised by noble Lords in this House, with very few exceptions, that separate judicial review was important for one reason only, and that is the symbolism and precedent that it would give rise to. The noble and learned Lord, Lord Mayhew of Twysden, and others have spoken of how that precedent is not there. I never thought that there was an issue. I always believed that we were sending a clear message that there was to be judicial scrutiny of these decisions, but I was in a minority on that matter. I am grateful to noble Lords who have made the point. I make it very clear that no precedent is being set. There is no statement by this country that we are against judicial scrutiny, but quite the opposite. We are saying that these decisions, difficult and sensitive though they are, will be subject to full review by a body which is a superior court of record.
I turn now to the point made by the noble Lord, Lord Lester of Herne Hill. I have also said in the past that I could not see areas where something could be done under judicial review which could not be done by SIAC. I invited noble Lords to point out where I was wrong. That remains my position. I believe that SIAC will be able to take everything into account which would have been considered on judicial review and more. I have made the point before that SIAC will be looking at the situation at the date of the hearing and not simply at the date of the certificate. Therefore, it is not simply a case, as the noble Earl, Lord Russell, asked, about looking at the grounds in the certificate because SIAC is entitled to take account of matters which have taken place subsequently. Given that and the fact that there is a clear right of appeal to the Court of Appeal on a question of law, I hope that I have adequately confirmed that there is nothing that could be done on judicial review by way of dealing with the certificate of the Secretary of State that SIAC would be unable to do.
Lord Goodhart: My Lords, as regards our own amendment, I am happy to accept what the noble and learned Lord, the Attorney-General, has said. We shall not press it. Turning to the substantive amendment and the group of Government amendments, we are not persuaded by what the noble and learned Lord has said. I am interested and
somewhat surprised to note that the Conservative Front Bench in the other place abstained on the vote last night and it is now proposing to vote with the Government. In that case we do not see any point in seeking to divide the House, but the fact that we will not do so is not to be taken as representing any agreement by us to the proposals which have been put forward. I beg leave to withdraw Amendment No. 22AA.Amendment No. 22AA, as an amendment to Amendment No. 22A, by leave, withdrawn.
On Question, Motion agreed to.
The Commons have also made the following consequential Amendments to the Bill:
22BClause 21, page 11, line 21, at end insert—
X( ) A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26.
( ) An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under—
(a) section 25 or 26, or
(b) section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeal)."
22CPage 16, line 23, leave out from beginning to Xand" in line 24 and insert—
X(3) A derogation matter may be questioned in legal proceedings only before the Special Immigration Appeals Commission;"
22DPage 16, line 28, leave out Xsubsection (2)" and insert Xthis subsection"
22EPage 18, line 21, at end insert Xor"
22FPage 18, line 25, leave out paragraph (d).
Lord Goldsmith: My Lords, I beg to move that the House do agree with the Commons in their consequential amendments, Amendments Nos. 22B to 22F.
Moved, That this House do agree with the Commons in their consequential amendments, Amendments Nos. 22B to 22F.—(Lord Goldsmith.)
On Question, Motion agreed to.
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