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Lord Dholakia: Perhaps I may put two questions to the Minister with which she may deal in replying to the debate. There are two causes of serious concern in Clause 85(3). The first is the words:
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): Perhaps I may speak first to Amendments Nos. 220 and 207. They would bring advocacy before the Special Immigration Appeals Commission within the scope of the Community Legal Service. That would mean that legal aid would be available for representation before SIAC. I mention SIAC first because I want to reassure the noble Lord, Lord Avebury, and the noble Earl, Lord Russell, that there is no similarity to the position in 1628 nor any blank cheque, because SIAC will play a role in relation to the clause. I understand that relatively few cases have come before SIACa total of 24 since it was established in 1998. As the Committee will be aware, SIAC was set up specifically to deal with cases involving national security matters.
The Community Legal Service was established by the Access to Justice Act 1999. Schedule 2 to that Act sets out those services for which public funding, formerly legal aid, may not be funded as part of the Community Legal Service. Under paragraph 2 of that schedule, advocacy in any proceedings is one of those services, subject to the exceptions also listed in that paragraph. Advocacy before most tribunals, including SIAC, is currently outside the scope of the Community Legal Service scheme. However, proceedings before the Immigration Appeal Tribunal and before immigration adjudicators are within the scope of the scheme. That means that individuals appearing there can receive public funding for representation if they satisfy the means and merits tests.
The fact that a service is outside the scope of the Community Legal Service scheme does not mean that public funding is never available for it. A power under Section 6(8)(b) of the Access to Justice Act 1999 allows the Lord Chancellor to authorise the Legal Service Commission to grant funding for services that are otherwise outside the scope of the scheme. That is known as "exceptional funding", and cases must satisfy the means and merits tests for funding and the particular criteria for exceptional funding, such as "overwhelming importance to the applicant" or that it is of "significant wider public interest".
My noble and learned friend the Lord Chancellor has exercised that power in relation to several individuals appearing before SIAC, most recently in March this year. The nature of proceedings before SIAC is such that financially eligible applicants will almost invariably satisfy the exceptional funding criteria. So exceptional funding is currently available to the relatively few applicants before SIAC who need it, on a case-by-case basis.
However, Amendment No. 220 will bring SIAC within the scope of normal public funding, so that applications can be dealt with directly by the Legal Services Commission without requiring a ministerial decision in each case. That will make the application process faster and more transparent. I should make clear that the amendments apply only to SIAC and will have no effect on the availability of funding for other tribunals.
Amendment No. 207, tabled by the Opposition, contains some drafting errors. Given that Amendment No. 220, tabled by the Government, will have the intended effect, I hope that Amendment No. 207 will not be pressed. I see that the noble Baroness, Lady Anelay, is nodding; I am most grateful to her.
As I said, I outlined that position first because Clause 85 as a whole removes rights of appeal under Clause 70(1) in cases where the Secretary of State has decided to exclude or remove a person from the United Kingdom on the grounds that Members of the Committee have described, namely: in the interests of national security; in the interests of the relationship between the United Kingdom and another country; or because it is desirable for another reason of a political kind.
That does not mean that a person's right of appeal is taken away. The Special Immigration Appeals Commission Act 1997 simply moves most of those appeals to the Special Immigration Appeals Commission, which was set up specifically to deal with cases where sensitive intelligence material is to be brought as evidence. Clause 85 as drafted does not represent a change in that policy.
Taken together, the amendments would remove the grounds in paragraphs b) and (c), leaving national security as the only ground on which an appeal cannot be heard before an adjudicator, as opposed to SIAC. That would cause serious difficulties. For example, if someone had committed crimes in or attempted to overthrow the government of another country or damaged their interests, severe damage could be done to relations with that country if the United Kingdom allowed that person entry. That could result in the loss of British jobs through cancellation of contracts, or perhaps withdrawal of co-operation in other areasintelligence sharing being onewhich would not be in the United Kingdom's national interest.
Earl Russell: Is the Minister aware that all of the arguments that she is advancing go against the hospitality that we gave to members of the African National Congressof which I remain deeply proud?
Baroness Scotland of Asthal: I respectfully disagree, because judgments must be made about requests receivedabout the quality and nature of the evidence produced by way of persuasion. I can certainly reassure the noble Earl that that judgment will continue to be exercised by Ministers when deciding whether such matters should properly be taken into account.
Often, the information on which the decision not to allow a particular person entry under this category will be highly sensitive. The other country may have provided us with intelligence material, or the UK intelligence services may have their own relevant information, which could compromise sources if revealed. By removing paragraph (b) from the list of cases to be heard by SIAC rather than by the adjudicator, all the information on which such a decision was based would have to be put before the adjudicator in a public forum. If that were not possible, the Home Secretary would have to withdraw his decision and permit the person to enter the United Kingdom. That could have a significant effect on our relationship with the country concerned. It is not that the information will not be capable of being seen; we are simply talking about the fora in which it will be discussed and debated. SIAC is an appropriate forum for disclosure. The information can then be examined and appropriate decisions made.
The noble Lord, Lord Dholakia, asked what was meant by the phrase,
Lord Avebury: It is up to the Government to argue the case and not up to us to divine how the powers might have been used in the past, had they existed. Can the Minister point to cases in which sensitive material had to be revealed to an adjudicator because SIAC did not exist? Are there cases in which people have been admitted to the country who would have been excluded, if we had been able to deal with them through SIAC?
Baroness Scotland of Asthal: In asking that question, the noble Lord has raised a sensitive issue. The purpose of creating SIAC is to provide an appropriate conduit through which sensitive material can be disclosed and, if necessary, reviewed. With SIAC, the validity of the opposition to someone's admission or exclusion can be examined critically and decisions
about the case made. About 13 matters have been certified since October 2000. I cannot give the noble Lord specific details of those 13 cases.Clause 85 does not take away the right of appeal. The amendment in paragraph 6(f) of Schedule 7 provide for any appeal relating to any immigration decision for which there is a certificate under Clause 85 to be heard by SIAC. I say that for the purposes of clarity.
We believe that the process set out is the most appropriate one. It relieves adjudicators of the burden of hearing in public information that may, for the reasons that I have given, be incredibly sensitive and should be heard with that sensitivity in mind.
Earl Russell: I may have misled the Minister by speaking with excessive brevity in my previous intervention: I had no intention of offering any criticism of the SIAC route. I accepted that when the Anti-terrorism, Crime and Security Bill went through. My noble friend Lord Lester of Herne Hill, who was involved in its genesis, has spent a great deal of time explaining it to me. It is, in fact, the procedure that they should have adopted in this House in 1628, had they had the trust to do so, which they did not.
I am concerned that we should leave, written in the law, words that allow us to imprison people for,
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