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Lord Falconer of Thoroton: The problem that we have is with timing. We need these rules extraordinarily quickly. The first set of rules, which the Lord Chancellor will make in England and the Lord President will make in Scotland, can be made within the time by applying the usual processes in Scotland, but not in England. As I indicated in answer to questions asked by the noble Lord, Lord Kingsland, the rules are in a moderately advanced state of preparation. I will try to make them available as quickly as I possibly can.
The Earl of Onslow: I am a beacon of clarity compared with the Government on this matter. With
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five O-levelswhich is all I haveand no university training, that shows what a serious muddle the Government are in. This provision would have the Chief Justice of Scotland and the Chief Justice of Northern Ireland making the rules judicially. In England, they would be made politically. That is a muddle. If the noble and learned Lord the Lord Chancellor cannot see that perhaps he did not deserve to pass his O-levels let alone go to university. This is exactly what I mean by a muddle.
Lord Falconer of Thoroton: The noble Earl puts his point with extreme clarity as ever. Surely, the fact that we have not reserved terrorism but have reserved the rules of the Court of Session is what the devolution settlement is. In dealing with the Bill before us, we must respect the devolution settlement. That is what we are doing.
Lord Forsyth of Drumlean: I am grateful to the noble and learned Lord the Lord Chancellor. I am endeavouring to be helpful. This may be a false point and, as he knows, I am not a lawyer. I understand that this is a devolved measure. Indeed, that was my question. But as I understand it, in respect of all devolved functions by the Scottish Parliament, it must act in accordance with the European Convention on Human Rights. How can it provide for a set of rules of procedure unless the rules are totally consistent with the European convention? That is what is making my brain hurt.
Lord Goodhart: Since the rules are going to be extremely important and will depart from traditional practices in a number of important ways, is it not important that Parliament should have some control over them? I quite understand the importance of getting them very quickly indeed, but would this not be an appropriate occasion on which it would be proper to use the procedure which is used from time to time in which the rules could come into effect immediately but would cease to have effect unless they were approved by both Houses within 40 days?
Lord Falconer of Thoroton: May I give that proposal some thought? Our problem with it would be getting them in force in time. If there is a means by which they can be properly looked at, we will certainly consider it, so I will certainly take that suggestion away.
I will return to the human rights issue, because although the noble Lord, Lord Forsyth of Drumlean, is not a lawyer, behind him is the former Lord Advocate, the noble and learned Lord, Lord Fraser of Carmyllie, who was looking quizzical about the point that I made. I was asserting that the rules of court would have to be, in Scotland, in England and Wales and also in Northern Ireland, consistent with convention rights. I suspect that the noble and learned Lord's concern was that that was an unusual procedure. How could it be consistent with
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the ECHR, particularly when the position would be that some of the material would not have been made available to the person who was the subject of the control order?
The noble and learned Lord will know that, in the Chahal case in 1997, the ECHR stated that, when we were dealing with deportationas in that caseand certain stuff might harm national security, using the special advocate procedure would make it consistent with the human rights convention subject to other factors. On two occasions, the courts in this country have looked at the SIAC procedure with reference to Article 6. On two separate occasions the courts have said that it is consistent with the convention in essence. What they are saying is that, as long as the procedure allows the court to look at it, and there is a special advocate on behalf of the suspect, it is okay.
Lord Lloyd of Berwick: Is the Lord Chancellor is referring to the Rehman case, which is the leading case on the subject and was a deportation case? There is an essential difference between such a case and other cases. So far as I know, no court has yet decided that the SIAC procedure would be good under the European convention if applied by a court.
Lord Falconer of Thoroton: I will read from the case of "A" in the Court of Appeal which then went to the House of Lords on the other point but not on this particular point. The following quotation is from paragraph 57 of the judgment of the noble and learned Lord, Lord Woolf. I appreciate that people should look at the whole case rather than reading only a paragraph. I will not give the citation but people can look it up. The noble and learned Lord stated:
"However, having regard to the issues to be inquired into, the proceedings are as fair as could reasonably be achieved. It is true that the detainees and their lawyers do not have the opportunity of cross-examining the closed material. However, the use of separate counsel to act on their behalf in relation to the closed evidence provides a substantial degree of protection. In addition, in deciding upon whether there has been compliance with Article 6, it is necessary to look at the proceedings as a whole including the appeal before this court. When this is done and the exception in relation to national security referred to in Article 6 is given due weight, I am satisfied there is no contravention".
Lord Falconer of Thoroton: It was on the point about proportionality and in relation to discrimination, but not in relation to this point. There is another case called "M" in which the Court of Appeal, in a unanimous judgment, stated that it could not leave the case without saying that it accepts that the SIAC
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procedure is just within the meaning of the convention. There are two decisions of the Court of Appeal in this country that say that it is a just procedure.
Lord Thomas of Gresford: The noble and learned Lord the Lord Chancellor must know that that the Judicial Committee of the House of Lords reserved the position in relation to Article 6. The committee found it unnecessary to come to any conclusion on it and reserves the position entirely. The committee did not support what had been said in the Court of Appeal in the way that the Lord Chancellor is implying by his replyI know that he does not mean to, but that is the implication of what he says.
Lord Falconer of Thoroton: I am saying specifically that the Court of Appeal has looked at this matter on two separate occasions and said that it complied with the ECHR. That is the point that the noble Lord has to deal with. I should also make it clear, before the noble Lord deals with it, that the Court of Appeal was aware that the two cases were deportation cases.
Lord Kingsland: There are two matters on which the noble and learned Lord touched. The first is in relation to the question asked by my noble friend Lord Forsyth. In my submission to the noble and learned Lord, there are at least two distinctions between the Scottish situation and our own. The first is that the rules in Scotland will be decided judicially and here they will derive from the noble and learned Lordhe might say quasi-judicially, but certainly not wholly judicially. Secondly, in Scotland, if those rules do not conform with Article 6, they will be struck down by the courts. In this country, the courts can only go as far as making a declaration of incompatibility.
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