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Lord Kingsland: The noble and learned Lord has given the Committee an important piece of information. It goes right to the heart of all the issues connected with due process. What is in that first draft will determine whether your Lordships will be prepared to pass this Bill. However, we will not find out what is in that draft until after the Bill leaves this House. That is why the position of the Opposition is that we want a guarantee on the face of the Bill that the rules of court for these matters will not be politically determined.
I have enormous, almost boundless, respect for the noble and learned Lord the Lord Chancellor in the fair way that he goes about exercising his duties. Nevertheless, this Bill has a strong political flavourfar too strong for us. Your Lordships need a guarantee that those initial rules, which will be produced by the end of the week, conform to the principles of due process that we seek. For that reason, despite the noble and learned Lord's intervention, I still want Schedule
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4 amended so that those rules are initially made by the Lord Chief Justice after, of course, consulting with the noble and learned Lord the Lord Chancellor. If that is so, I shall be confident that this amendment will be respected.
Lord Falconer of Thoroton: Let me deal with that series of very important points. First, I am glad that I have been able to make it clear that the rules we are talking about being made by the Lord Chancellor involve only,
as provided for in paragraph 3(1)(a) of the schedule. Secondly, I unreservedly give an undertaking that those rules will not be political in nature but will be determined entirely by the requirements of the process.
However, I recognise that the noble Lord is looking for more assurance. As he knows, I am obliged to consult the Lord Chief Justice about the rules. That seems to be the practical way to deal with it. I need to consult the Lord Chief Justice about the best way to reassure the noble Lord. If there is any disagreement between myself and the Lord Chief Justicealthough I would have to consult with the noble and learned Lord about thisthe best way to reassure the noble Lord might be for that disagreement to be made public, but I cannot give that assurance until I have spoken to the Lord Chief Justice.
Lord Kingsland: I was going to ask whether I could probe these matters further, but I think the noble and learned Lord has given me the answer to what would have been my question in the second half of his last sentence.
The noble and learned Lord has plainly not yet consulted the noble and learned Lord the Lord Chief Justice about the rules. We are now moving towards the middle of Monday evening; this Bill is due to leave your Lordships' House by about the same time tomorrow. It is absolutely crucial that we know much more about what is likely to appear in that first set of rules. I urge the noble and learned Lord the Lord Chancellor to make an early telephone call to the noble and learned Lord the Lord Chief Justice to try and throw some clearer light on many dark corners that have emerged as a result of the contents of the schedule.
Lord Falconer of Thoroton: The noble Lord, Lord Kingsland, will know that the rules for SIAC address a very similar area, so he will know the broad shape of the rules. But I am as keen as I possibly could be to give the noble Lord the assurance he seeks.
Lord Kingsland: Unlike the operation of SIAC, Article 6 applies to the control order system. Well, the noble and learned Lord says that only Article 6(1) applies, but, with great respect, I believe that he is wrong. I believe that the other sub-paragraphs of Article 6 also apply, for reasons which I would have had a chance to explain to your Lordships' House if we had not been somewhat short of time this afternoon.
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It is clear that the SIAC rules will not do. The European Court of Human Rights has decided that Article 6 does not apply at all to immigration tribunals and the law that is based on immigration tribunals. The reason for that is that no civil rights in those proceedings are in issue. But civil rights are in issue here and, what is more, we cannot escape the jurisprudence of the European Court of Human Rights that says if a criminal penalty is dressed up as a civil penalty, nevertheless those proceedings are criminal and bring with them all the protections that Article 6 contains.
The rules that the noble and learned Lord will agree with the noble and learned Lord the Lord Chief Justice will have to respect the principles set out in Article 6. That is quite a different situation from SIAC.
Lord Falconer of Thoroton: At the heart of the noble Lord's point is the question, "Can we see a copy of the rules?". We are working as hard as we can on this. I can give no assurances about when they will be produced, but they are in a moderately advanced state of preparation.
Lord Thomas of Gresford: I hope that Article 6 principles are applied to the rules. It is quite clear to me that the proposed proceedings have the colour of a criminal hearing and that Article 6 will therefore apply in full. It is not just a question of civil obligations when you are depriving people of their liberty, whether to a large or a small degree.
This debate is going further and further away from the amendment, which I should like to focus on again. The noble Lord, Lord Neill of Bladen, made a very important point about the way in which the court will be looking at possibly secret material. In fact, in the new clause that we passed in Amendment No. 80, if it revokes an order, the court may,
It seems only sensible that where compensation is to be paid, it should be paid within the system. A person who succeeds in quashing a control order should have his claim for compensation determined at the same time so that if there is material that cannot be disclosed to him, the same procedures are applied. The noble and learned Lord suggested that instead of doing that, the person who has the order quashed should start fresh proceedings in the High Court. That would be a complete waste of time and would give rise to all the problems to which the noble Lord, Lord Neill, pointed.
Lord Forsyth of Drumlean: I should like to press the noble and learned Lord the Lord Chancellor and go back to the discussion in which, in response to my noble friend Lord Kingsland, he very kindly said that he would endeavour to make the rules of court available. Can he give the same undertaking in respect of the rules which will apply in the Court of Session, which presumably will be a matter for the Lord President? How would that work?
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The noble Baroness, Lady Scotland, described devolution as a wonderful thing to behold. One of the things that one can behold in devolution is that the devolved administration are not allowed to do anything that falls outwith the European Convention on Human Rights. I am not a lawyer, but I think that producing the rules of court in the Court of Session to meet the requirements of this legislation will be an interesting task.
Lord Fraser of Carmyllie: My noble friend Lord Forsyth must be right about that. If the noble and learned Lord the Lord Chancellor is prepared to give the concession that any rules this side of the Border are to be considered by the Lord Chief Justice, it must follow as a matter of law that a similar consultation is undertaken with the Lord President of the Court of Session.
Lord Falconer of Thoroton: I am so glad to see the noble and learned Lord, Lord Fraser of Carmyllie, in this debate. He is of course rightindeed, I can go further on that issue. Rules and procedure of the Court of Session are a devolved matter. I could not make the rules for the Court of Session. It has been agreed, and it is reflected in the Bill, that the Lord President of the Court of Session should make the rules. Unlike the position of the Lord Chief Justice and the Lord Chief Justice in Northern Ireland, the normal ways of making the rules would not permit the rules to be ready in time. The Lord President will make the rules in Scotland because this is a devolved matter, unlikeand I hardly dare stray back into this areaterrorism, which is not a devolved matter.
Lord Desai: In order to reassure the noble Lord, Lord Kingsland, will my noble and learned friend take cognisance of the recommendation of the Delegated Powers and Regulatory Reform Committee that such rules as are made should be subject to an affirmative procedure? If that is done, we will have sight of the rules before they go into operation.
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