Clause 21 — Suspected international terrorist: certification

Orders of the Day — Anti-terrorism, Crime and Security Bill – in the House of Commons at 8:16 pm on 12th December 2001.

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Votes in this debate

Lords amendment: No. 9, in page 10, line 38, leave out "an international" and insert "a".

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this, it will be convenient to take the following: Lords amendments Nos. 10 to 20, Lords amendments Nos. 21 and 22 and Government amendments (a) to (f) thereto.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

Part 4 rightly received a great deal of attention in Committee in this House and in the House of Lords. It has also been debated publicly at considerable length, and understandable concerns have been expressed by hon. Members on both sides of the House during the Bill's passage.

Considerable progress has already been made in clarifying the role of the Special Immigration Appeals Commission, and its relationship with other aspects of the judicial process and with the Home Secretary's role in certification. We seek tonight to find a way forward to complete the unification of the two sides of the House and secure the good will of those of all parties about the way in which the procedures should operate.

All parties have expressed the wish to see the threat of terrorism and those who pose a threat internationally and whom this country currently hosts dealt with decisively. We have disagreed about how far we should go in deratifying the European convention and on the removal of people to countries where their lives and well-being might be at risk. Concerns have been expressed that any kind of detention, as an alternative to removal, is a threat to human rights. We have sought together to try to find a process that gives sufficient guarantee of due process to enable people to feel that, in the difficult circumstances that we face, we have found a suitable avenue for achieving the proportionate balance that we have talked about over weeks and months.

Photo of George Osborne George Osborne Conservative, Tatton

Part 4 rests on the derogation from article 5 of the European convention. Has the Home Secretary read the comments of David Pannick QC, one of the country's leading barristers, that the derogation from article 5 is unlawful because, first, the European Court of Human Rights is unlikely to accept that we face a public emergency threatening the life of the nation and, secondly, even if it did accept that, the Government will not be able to establish to the Court's satisfaction that detention without trial is strictly required by the exigencies of the situation? Can the Home Secretary assure us that David Pannick is wrong in his interpretation of the law, because if he is correct part 4 is at serious risk of collapsing?

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I have seen David Pannick's comments. I have a great deal of respect for his judgment and the Home Office has made use of it on several occasions, but we do not believe that he is correct, nor do any of the lawyers we have consulted. Subject to the passage of the Bill in the next 48 hours, we shall, as we said we would, deposit the derogation at Strasbourg. We believe that that step will complete the necessary process.

In two sets of discussions with United States Attorney-General John Ashcroft today, it was made wholly clear that the international threat remains. Although we have made enormous progress on Afghanistan and al-Qaeda, we have not undermined that network, the tentacles of which stretch across the world. John Ashcroft described the process as stretching from those who have a conception of an idea, through those who plan based on the idea, to those to execute it. All three steps can involve different groups, in different parts of the world, operating in different spheres and at different times. That is why we believe that the threat that became apparent immediately after 11 September has not diminished.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

No one in the House is in favour of terrorism or terrorist attacks, but many of us believe that the criminal law should be used to apprehend people who commit or who are planning to commit criminal acts. Will the Home Secretary explain why this country, almost alone in Europe, is proposing such draconian measures and derogation from human rights conventions when other countries believe that their criminal law is sufficient to deal with the threat?

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

As I said on Second Reading and in Committee—I regret the need to repeat myself, but doing so is necessary because we must take a measured approach this evening—not only do we accept that there is an international threat and that we are in danger of hosting, as many have accused us of doing, those who engage in organising, funding or perpetrating international terrorism, but we believe that we are at greater risk than many other countries because of our declared and clear alliance with the United States, for which that country's people are deeply grateful, and because in the minds of those who have engaged in terror we are associated with the international action taken against the terrorists.

We need to update our preparedness, our legislation and our actions against terrorism—even in a way that has been denounced by other countries, including those to which my hon. Friend refers—and to reflect the nature and the response to the threat to the United States and elsewhere, albeit not to the extent that the United States has found necessary. On Second Reading, in Committee and on several other occasions the House has reflected on the fact that we have not suggested the sort of measures that the United States has felt it necessary to take in terms of detention or military tribunals in order to deal with the perceived threat.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Members on both sides of the House agree that we are under threat from terrorism—the whole world is under threat from terrorism, this country perhaps more than most others apart from the United States. We were under threat from terrorism before 11 September, and that threat may have increased since, but that is not the test for derogation. Mr. Pannick and others who support him say that the test is not whether we are under threat from terrorism, but whether the threat is so severe that it threatens the life of the nation. Nothing the Home Secretary has said on Second Reading, in Committee or tonight takes that necessary step to extend the threat of terrorism, which obviously exists, to a threat that threatens the life of this nation. That is a far more severe test, and not one that the Home Secretary will find it easy to demonstrate.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I say with great sadness that I fear that I shall not be able to convince my hon. Friend. We know what happened on 11 September, and I think that most people are aware of the time that it takes to organise acts of terror, some of which have been detected. I have mentioned previously those in Jordan and the proposed attack on the American embassy in Paris. There are also the well-known Tanzanian and Kenyan US embassy attacks in 1998. Such attacks take a long time to prepare. They are organised and funded on the basis that they will disrupt, as we saw at the World Trade Centre, both the economic life and activity of a nation. There is not simply the act; there is also the knock-on or spin-on effect on the life of the nation.

If people do not believe that what happened on 11 September has not had a dramatic effect on the life of the United States, on its economy and on the economy of the world, they have been living in a different world from the one that the rest of us inhabit. It has had that effect, and everyone knows that. It has changed the perspective.

I cannot guarantee that there will not be an attack on the United Kingdom—nor can I say that there will be such an attack. We started the debate on the basis of whether we take decisive action of the sort that is proposed. It behoves us to consider whether we believe that we would find what we are proposing acceptable if a major attack took place.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

The test that has to be satisfied to allow derogation to be justified is a high one, as Mr. Fisher has said: the essence of the life of the country must be under threat. The right hon. Gentleman said on 15 October, more than a month after the terrorist attack on New York, that there was no immediate threat to the United Kingdom. Of course terrorism exists, but there is not an immediate threat to the essence of the country.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I am in a cleft stick. In seeking to ensure reassurance, which I have done to the best of my ability over the weeks after 11 September, and to ensure that the life of the nation was not immediately disrupted by a change in people's behaviour, it should not be assumed that people did not believe that there is and remains a threat to the life of the nation.

I am posing the question whether people believed on the 12th, or believe it now, that there was or is a threat. I believe that the threat has not diminished. I take the same view now as I took the day after 11 September. The question that must be answered is whether people think that what we are seeking to do under part 4 is justified if a substantial attack took place now. I suggest that they would. Taking action to preclude that threat to the life of the nation has to be the right thing to do, rather than taking the action after the life of the nation has demonstrably been threatened.

Photo of David Winnick David Winnick Labour, Walsall North

The only issue on which I voted against the Government in this context is judicial review. I shall listen with great interest to what my right hon. Friend has to say about that. Is he aware that in the previous Parliament I asked his predecessor a number of questions at meetings of the Select Committee on Home Affairs about those who are alleged to have been much involved in terrorism abroad, who were using Britain as a safe haven, but who for various reasons could not be tried? It would be naive of us not to accept—there is one such case in the United States—that there remain a number of people who, in my view, are certainly a danger to communities abroad and to Britain itself.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department 8:45 pm, 12th December 2001

I agree entirely; that is why we must take the action that we are proposing. In two seconds, I shall deal with the issue of judicial review, which has strongly exercised my hon. Friend and many others, including Members of the House of Lords.

First, however, we are endeavouring to answer the question of how to deal with the situation, either by withdrawing—temporarily or otherwise—from the European convention on human rights and taking action to remove people elsewhere in the world, or by removing the power to detain or remove people in circumstances in which the usual court proceedings, because of the risk posed to the security and intelligence services and those working for them, do not allow us to present that evidence. We are dealing with that tonight.

We have chosen the road of proportionality and the middle ground. People have accepted that the Special Immigration Appeals Commission, unanimously set up by both Houses, was an appropriate avenue for presenting such evidence in the circumstances that I have just described—it would not be appropriate to present such evidence in open court—on the certification of the Home Secretary, to remove someone, either on security grounds or because their presence was not conducive to the public good. Now we are having to decide whether, when we cannot remove someone without putting their life at risk, that mechanism is appropriate to detain them, albeit with constant reviews of the position and given the fact that that the individual can leave the country, should they find a safe place to go.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I wish to raise two matters with the Home Secretary. First, Government amendment (a) states that the Special Immigration Appeals Commission will be deemed

"a superior court of record".

What does that mean, other than that some proceedings will be subject to recording? Secondly and more substantially, the Home Secretary will know that, under the Special Immigration Appeals Commission Act 1997, there are special procedures that, for example, enable the tribunal to hold that some parts of the evidence should be withheld from the detained person and, indeed, that he or she may not necessarily be present during the proceedings. Is there anything in the Government amendments that changes the position under the 1997 Act? I am not aware of any such provision.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I was about to deal with the issue of making SIAC an administrative court and superior court of record.

The right hon. and learned Gentleman described the situation correctly. Elements of presented evidence are withheld, but not from the advocate appointed on behalf of the individual.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

He is appointed for that purpose, although the individual can choose legal representation. As I have said in previous debates, the individual can, if they wish, retain that advocate in the Court of Appeal and the House of Lords

I have it on good authority that those who have expressed the gravest concern about judicial review—Law Lords and ex-Law Lords in the House of Lords—believe that the designation of SIAC as a superior court of record and administrative court will meet their concerns because its procedures will provide the equivalent of judicial review.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

May I assist? A court of record simply means that the proceedings are recorded with a view to them subsequently being subject to scrutiny on appeal or by way of precedent. As there is no appeal from SIAC except by way of law, and as it is not a court of precedent, what is the point of making it a court of record?

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

It establishes—beyond peradventure, as Lord Heseltine would have said—the position, the status and the record, which can be carried forward. My hon. and learned Friend is always helpful to me. I know that he comes into the Chamber for that purpose alone. I look forward to his being helpful to me again and again, for many years to come.

The right of appeal on those aspects that would be appropriate to the Appeal Court of the House of Lords will be granted. I take the word of those who, over many generations, have been engaged in the law that that overcomes their concerns in respect of the issues that we have debated at length—for example, how we deal with a review of a review, where the evidence that must be adduced and presented must be in the same form, with the same complete security, as in the previous review.

That is why we argued the case in terms of whether the Special Immigration Appeals Commission needed a new SIAC to review it. If that means designating a superior court of record and confirming the level of the judiciary involved, as in a Crown court, so be it. In other words—just to show my hon. and learned Friend that I have some grasp of the law—the Crown court cannot be judicially reviewed as a Crown court.

Photo of Michael Weir Michael Weir Scottish National Party, Angus

In Scotland any decision by a Government Department can be subject to judicial review by the Court of Session. Under the new legislation, will the matter be decided only by SIAC, and will the Scottish court no longer be able to carry out a judicial review?

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

On that very issue, I was pleased to help one of the hon. Gentleman's colleagues, who participated in the debate in Committee, having missed Second Reading because she was in her constituency. I hope that the hon. Gentleman was not otherwise engaged at the time, as it would be a shame to go over the explanation again. I explained at enormous length the operation of the Special Immigration Appeals Commission and its jurisdiction. I do not want to be unhelpful, but as any hon. Member who was present on Second Reading and in Committee will recall, we took every intervention. Whatever else hon. Members disagree about, they cannot deny that we have spelled out in words of one syllable how SIAC works.

In the present context, we are seeking to deal with the situation of people who would otherwise have been removed on the certification of the Home Secretary, who appeal through SIAC, and who are to be detained if they cannot be removed. We are trying to ensure that the process works.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office)

I hope that the Home Secretary will accept my question as genuinely helpful. Does he agree that when the noble Lord Donaldson accepted the amendment, the view that he took—he holds a special position in our judiciary—was that the effect of denominating SIAC as a superior court of record would be to turn it into a clear part of the High Court and give it all the powers of judicial review that would otherwise pertain to the High Court, but with the special procedures of SIAC in place, so that the information made available by the security services would not be compromised when it was given to the court?

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

That is entirely correct. I am grateful for the succinct presentation, as ever, of the way in which Lord Donaldson and others who have examined the provision understand it to work. It is on that basis that we are resisting amendments Nos. 21 and 22 and seeking to gain agreement on the way forward on this specific issue. I know that some hon. Members on both sides of the House will remain convinced of the position that they held from the beginning, which is that this part of the Bill should not be proceeded with. We must continue to have a genuine disagreement on that point. However, we have done our utmost to secure the agreement of those who understood the reasons for the provisions, but were concerned about the nature of the process.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

With regard to court procedures, first, does the Home Secretary accept that it is possible at any level for courts to sit in secret and that the Government can at any stage issue a public interest immunity certificate, which means that some evidence or information may not be revealed? Secondly, one of his concerns may be that judicial review will often be used or often be successful, or that it will be abused and cause delay. The evidence is that it succeeds about one in 100 times, and it has never succeeded in relation to SIAC so far. If he has that concern, does he accept that one could time limit a period by which a judicial review could be made, in order to deal with any possibility that it might be used as a delaying tactic?

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

Of course, the first part of the hon. Gentleman's question relates directly to the second part, as one would agree to the second only if one accepted the first, which involves the holding of proceedings in camera in a normal court and the evocation of public interest immunity to the point where not only the evidence that is presented would be protected, but those presenting it and those working on behalf of the security services. The security services made it absolutely clear to me—I do not think that I am breaching any confidence in saying this—that they would bring no cases forward if we used the normal court system and attempted to use public interest immunity.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

It is not blackmail. If I am asked about why we are not using public interest immunity and the potential for part of the evidence to be considered in camera, there is no point in shouting from the Back Benches when I give the answer. The security services do not believe that it is possible to hold in camera a case in which those who have not been designated under security legislation to be able to hear and take evidence would inevitably have to do so. In the past, evidence on public interest immunity has led judges to rule that those who were prepared to give evidence—such people will often have been working on behalf of the security services at tremendous risk to their lives in circumstances that none of us would ever want to experience—had to present themselves and be exposed to the accused person. In such circumstances, those people can be committed to almost certain death.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I shall do so, because I hear total disbelief from behind me. I do not hear that in front of me.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I have provoked that question, but let me be provoked by my own side for a moment.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

There is some disbelief on the Benches behind the Home Secretary. I find it astonishing that he should tell the House that the security services are not prepared to bring forward evidence if there is any danger of it being heard in a court, even if it is in camera. It is extraordinary that the security services, which are largely unaccountable to anybody, should decide what the policies of this country should be. Apparently, they are now even deciding what its law should be.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

First, the security services did not determine the law. They indicated to me the circumstances in which they would be able to present particular types of evidence, which is precisely why we have been debating this whole issue. We have almost gone full circle. If somebody does not accept that there are circumstances in which evidence that has been adduced cannot be presented in a court, even if it is under a public interest immunity, and if they do not accept that view in respect of the level or threshold of evidence and the way in which it is presented, in relation to what was adduced in the Rehman case that we debated previously and affirmed by the House of Lords in the middle of October, they will not believe me. They will not be committed to following that process. Some hon. Members would like to undo the result of the vote on establishing SIAC. It was established on the basis that it could take evidence in the way in which I am describing—on appeal against certification by the Home Secretary, whoever he or she may be, in relation to removal on ground of security or because a person's presence is not conducive to the public good. The evidence, to be adduced and presented in precisely the way in which I am outlining, was acceptable for those purposes. That was demonstrated by the Mullah Rehman appeal and affirmed in the House of Lords. Those who believe that all that is wrong will believe that I am wrong.

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I shall, but I want to finish the point. Let us consider the difference between what has already been agreed and carried through and my proposals. We will use the same process but the outcome is not removal in cases where the person's life would be at risk, but detention with review. The process, with the sort of evidence and advocacy that has already been established, has only one different feature. We cannot remove people because, rightly, we will not breach article 3 of the European convention on human rights, and we must therefore detain them.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am sorry, but I must revert to a point that genuinely troubles me. The amendment designates SIAC as a court of record. In answer to my hon. Friend the shadow Home Secretary, the Home Secretary said that that effectively gives SIAC the powers of judicial review. Clause 26 properly and fully sets out the commission's powers. They are not the same as the power of judicial review. It is therefore difficult to reconcile the statement that SIAC will have the powers of judicial review with the statutory powers for which the Bill explicitly provides. How does the Home Secretary reconcile those positions?

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

The process is to review the certification signed by the Home Secretary. Those who seek judicial review of SIAC are trying to review the decision of a court. The decision to designate SIAC as a superior court of record affirms that. I shall rest my case so that other hon. Members can speak because we have only one fundamental disagreement. The process is already laid down, albeit that the outcome—detention rather than removal—is different from the original intention. Our disagreement is about the process. I understand why people do not believe that it is acceptable, but I disagree with them, because it is the only way in which to deal with the current circumstances.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

Is the Home Secretary minded to extend the rights of appeal from SIAC to the Court of Appeal so that matters of fact and law can be appealed against? In such circumstances can the Court of Appeal sit in camera and use the special advocate procedure?

Photo of David Blunkett David Blunkett The Secretary of State for the Home Department

I am confining the amendment to the designation of SIAC. The right of appeal on a point of law remains, as described earlier.

Ultimately, we are debating whether hon. Members believe, in the circumstances, that it is appropriate to detain people using the evidence, the threshold and the process of SIAC in the way that was intended for removal and will now be used for detention when we cannot remove.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

One of the terrible consequences of this procedure is that we have an hour in total for this debate. It is no criticism of the Home Secretary to say that 35 minutes of that hour has been taken up by his explaining the Government's view and answering questions. However, with the best will in the world, it is impossible in an hour for the House to do justice to the arguments about the fundamental issue of keeping judicial review, or to consider the alternative before us in the form of a Government amendment whose genesis lies in a proposal by a former Lord of Appeal and Master of the Rolls. One of our complaints is that, because of the speed of the process, this legislation has needed to come back so that this issue can be revisited—as the Government now accept—and many other interrelated issues as well.

This group of amendments covers three issues, the last of which is judicial review. Government amendments (a) to (f) offer an alternative to the Lords' removal of the original provisions stating that one could not go to judicial review in relation to detention without trial. In relation to amendments Nos. 9 and 13, we are grateful that the Government have accepted the amendment tabled by the Conservatives with the support of the Liberal Democrats and of Irish Members of Parliament, which defines terrorism in the same way, whether it is national or international. That concession is gratefully received. It would have been nonsense to define separately whether someone's motive was connected to activity within or outside the UK or part of it. We also welcome the improvements in the procedure relating to the timetable for review and other matters contained in amendments Nos. 14 to 20.

The nub of this issue, however, is judicial review. I want to tell the House why we should agree to accept the Lords' decision to remove the provisions that suggest that one cannot go to judicial review, and not to accept the alternative. I do so respectfully and carefully, conscious that the amendments come from Lord Donaldson, whom I respect. This is his attempt, supported by others, to find a way through the middle, but I do not accept—I believe that hon. Members on both sides of the House share my view—that it meets the test, or that the amendments satisfy the concerns that have been voiced abroad in the House and beyond.

We would be wrong to derogate from the European convention on human rights and from the Human Rights Act 1998. Nothing that the Home Secretary has said about the issues on which we agree—for example, that there remains an international threat, which I accept without qualification—persuades me that that takes us into the criteria for qualifying for derogation.

The two tests have been set out: there has to be a public emergency threatening the life of the nation, and the resultant action has to be action strictly required by the exigencies of the situation. Like David Pannick, whom we all respect as an authority, the Liberal Democrats' view is that those tests are not met. I honestly believe that, if the Government proceed, they would be at risk of being found to have breached their qualifications for derogation, if it were tested either in a domestic court or in the European Court of Human Rights.

The Home Secretary has been both courteous and conciliatory today, as he has on almost every other occasion that I can remember. I hope that he will accept that, just because my colleagues and I have a different view, it does not mean that we are not of good will on these issues. We shall, I anticipate, reach a different conclusion, but I hope that he accepts that we do so for the same reasons that the Labour party in opposition, on many occasions, perfectly honourably reached a different conclusion on emergency legislation from the Tory Government.

So that there is no doubt, I repeat that we do not accept that detention without trial for people who are not British is a necessary step when others have not been attempted. We should first try to charge and prosecute. Secondly, if the security services cannot proceed because of the rules of evidence, we could amend those rules. Thirdly, we might consider the procedures of the court. Only when we have tried and failed with those, and they have not been considered in the context of the Bill, should we contemplate the further step. We are not persuaded.

We do not go along with the Conservative view that it would be right to have a reservation in relation to the European convention on human rights—that is one of our few disagreements on the substance of the Bill—so we offer a different solution, which we think could be achieved by procedures in the domestic courts.

One reason for believing that our case is justified is that no signatory country to the ECHR, which goes wider than the EU, has yet seen fit to say that it must go down that road. I am not privy to whether those countries might do so, but it is significant that, three months after 11 September, not one other ECHR signatory—that includes all Council of Europe member countries—has changed its position on detention without trial. For me, that is not the persuasive argument, but it is additional strong evidence that we should take into account.

As I want to allow other colleagues to speak, I shall list my reasons for hoping that the House accepts that SIAC, even as amended by the alternative suggested in the Government amendment, will not work. If hon. Members have any doubts, I refer them to the first day of debate on Report in the House of Lords and the speeches of Lord Mayhew of Twysden, the former Secretary of State for Northern Ireland, my noble Friend Lord Goodhart and Lord Donaldson. I quote Lord Mayhew, but each speech includes such phrases:

"My submission is that in the Bill we should not be driven to surrender a precious safeguard against the abuse of power, especially when there is no need for it. If one did so, one could be sure that such a precedent would soon be followed because, in my experience, all departmental Ministers resent judicial review. That in itself is a good reason why it should be cherished."—[Hansard, House of Lords, 6 December 2001; Vol. 629, c. 997.]

That may apply in only one case in a hundred, which is Lord Donaldson's view, and Lord Mayhew may accept that the SIAC amendment route is the right way forward, but that does not pass the test of principle. We must not remove judicial review not only because that in itself is wrong, but because it would make for a better argument for removal in lots of other cases, at home and abroad.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office)

We agree on so much, but does the hon. Gentleman agree that Lords Donaldson and Mayhew are minded to accept the Government amendment because it does not preclude judicial review? Indeed, amendment (a)(4) specifically provides for a superior court to question the legal proceedings and makes it possible by denominating SIAC part of the High Court. That is precisely why, in the opinion of Lords Donaldson and Mayhew and of my party, the amendment no longer constitutes a devastating precedent of the kind that so many noble Lords rightly referred to in that debate.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I welcome the way in which the hon. Gentleman has approached the Bill and I understand the argument, but we have not reached the same conclusion for the following three reasons, which I shall describe.

First, it strikes us as illogical to try to exclude judicial review in this case, outside the new process that is being suggested, when it was not excluded in the earlier "concept in use" context of SIAC. Secondly, as was said by many speakers on the Cross Benches and on both sides of the House of Lords, one can never tell what procedural or other irregularity one might wish to question. It might be an executive decision by the Home Secretary to issue a certificate to detain someone, or—although I accept that this would be much less likely if the proposal were accepted—a procedure further up the chain. Certainly, however—my hon. Friend Mr. Burnett asked about this—it cannot be the case that a process that might preclude an appeal on the basis of fact and allow it only on the basis of law would not allow an adequate remedy.

Finally, we think that, for reasons of precedent and principle, if the measure adds nothing it will either never be used, or be used so rarely that it will exist merely as a reserve power to be employed in exceptional circumstances. It cannot be necessary to preclude an eventuality that we may or may not be able to anticipate.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office) 9:15 pm, 12th December 2001

That is the nub of the issue. Does the hon. Gentleman acknowledge that in that same debate in the Lords, which I attended myself, Lord Donaldson agreed that a judicial review by the High Court—not SIAC—would necessitate the adoption of SIAC rules, because it would otherwise be impossible for the security forces to reveal to, for example, a barrister appointed by al-Qaeda, who might be an al-Qaeda adherent, information on which the reasonableness of the Home Secretary's decision could alone be judged? Did it not become clear at that point that the distinction between the High Court's adoption of SIAC rules and the redenomination of SIAC as the High Court was, in fact, no distinction?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

If the amendment would make SIAC a court rather than an administrative tribunal—it appears that it might do so, but I put this neutrally—that is certainly an improvement. It is interesting that we are creating what is effectively a new administrative court, or at least a new administrative division of the High Court, at this stage rather than next year, when we shall look at the review of the court system—although the process is not entirely satisfactory.

Colleagues in the other place who are more eminent than me in terms of practice in these matters—including Lord Thomas of Gresford and Lord Lester of Herne Hill—have suggested to me that there may be circumstances that are not covered by the new, enhanced power of SIAC to review cases. It is also felt that the onus must be on the Government to show that there is a public interest against an ability to opt for the conventional occasional judicial review.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

Will the hon. Gentleman help me to understand what Lord Donaldson proposes? Is he saying that, having been designated a court of record, SIAC will be able to constitute the location for judicial review of decisions that it has already reached? Is that not legally tautologous?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Courts can do that. If the hon. Gentleman, who is very assiduous, reads the speech made by Lord Donaldson on Report, he will see that the Court of Appeal has sometimes been called on in the middle of its hearings to perform a sub-exercise involving judicial review of an issue raised in another court. Bizarrely, that can happen.

There is a wider point, however—the point on which our analysis differs with that of Lord Donaldson. For reasons given by Mr. Marshall–Andrews, merely conferring a power to record proceedings, and conferring greater status, will not necessarily deal with every eventuality. Furthermore, it will not confer all the powers that may be needed to check the decisions of the Secretary of State in regard to detention, and the processes thereafter. It will not cover all the safeguards connected with human rights that a citizen might need—safeguards relating to time, language translation, legal aid and advice and, most important, the certainty of knowing the case against him or her at every stage. We believe that that can be dealt with adequately either by the court going into secret session—my hon. Friend the Member for Torridge and West Devon asked about that too—or by the issue of a public interest immunity certificate or the like.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

As the hon. Gentleman would accept, one of the problems is that SIAC has a power to withhold from the detained person pieces of evidence. As I understand the procedure contained in the Bill, no one will be in a position to review whether SIAC's decision to exclude bits of evidence from the detained person was good or bad. That seems to be fundamentally unjust.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

The right hon. and learned Gentleman's point is strong. As the Home Secretary said, one court will not judicially review another court, so it cannot do that. An important evidential point about the defendant meeting the case against them may never be able to be looked at again. Those seem to be among the reasons why the procedure does not give assurance.

I am conscious of the fact that normally the reviewing court, whether it has examined local council decisions or other decisions, has accepted the view of the initial court, but just occasionally it intervenes and says that that court got it wrong: procedurally and evidentially, there was an unfairness. It is that overriding final judgment that is being limited, which seems unjustified, even in exceptional circumstances.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office)

Does the hon. Gentleman agree that it is at least the proposition of Lord Donaldson, who I repeat is in a privileged position in talking about this matter, that under subsection (4) of Government amendment (a) to Lords amendments Nos. 21 and 22, the court of appeal could question the proceedings of the commission in respect of the matter raised by my right hon. and learned Friend Mr. Hogg? That is critical.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

Again, we are showing the weakness of the timetable. There is a limitation in subsection (4) of the amendment to the original Act setting up SIAC, which I shall read into the record:

"A decision of the Commission shall be questioned in legal proceedings only in accordance with" the appeal provisions set out in the original Act, or as to whether derogation was acceptable or not. Those are the two cases.

The fact that we are arguing about whether the alternative gives the guarantees is in itself a final argument for asking the House to reject it. Is it worth risking being found in breach of European law, being out of step with all our other European colleagues and someone being treated unjustly to devise a new procedure? Existing procedure perfectly adequately answers the question. As I hinted earlier, we are willing to accept that judicial review could have a time limit, and that evidence can be protected so that secrecy can be maintained, but the Liberal Democrats are not persuaded that, for this occasion and in this way, either for precedent or principle, judicial review should be written out of this part of British legislation. In the most extreme cases, we need the greatest protection most.

Photo of Mr Denzil Davies Mr Denzil Davies Labour, Llanelli

I shall be brief. My right hon. Friend the Home Secretary will be surprised to hear that someone who is sitting behind him and who is a lawyer supports him in the belief that he has gone as far as he possibly can in a very difficult situation. I promise him, and my hon. Friends around me, that I will never do it again.

Photo of Mr Denzil Davies Mr Denzil Davies Labour, Llanelli

It is indeed.

I find myself in some difficulty in that I appear to be at least indirectly endorsing the views of Lord Donaldson. I was in the House a long time ago when he existed in a different incarnation. Perhaps he was not quite the civil libertarian in those days that he has become since, especially when he was made Master of the Rolls.

I shall not follow Simon Hughes down the by-ways of the European convention. If the matter goes to court and if Mr. Pannick represents those who take it to court, the matter will have to be considered. In any case, my right hon. Friend the Home Secretary has gone as far as he can. Judicial review is a splendid procedure and nobody can be against it, especially lawyers, but it is not perfect. It cannot consider the merits of a case, merely whether a decision is lawful or unlawful. It can also consider whether a decision is reasonable, in the sense of whether a reasonable person would have come to that decision.

The difficult immigration case of Chahal went eventually to the European Court of Human Rights, which trenchantly criticised the UK system of judicial review. However, I do not suggest that that case is on all fours with the present situation. Nobody likes special tribunals but SIAC was set up to try to deal with the real problems of the Chahal case. On balance, I am not sure about the court of record and from my law exams, I seem to remember a concept that lawyers called an error on the face of a record. If SIAC had experienced a procedural problem—for example, evidence had not been properly considered—but not a problem of substantive law, that would be an error on the face of the record and could be considered by the Court of Appeal, which may only consider appeals on points of law. That applies also to errors on the face of the record, which could mean a procedural or evidential error on the part of SIAC. I do not like that approach, and my right hon. Friend the Home Secretary probably does not like it either.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Is not the right hon. Gentleman conceding, broadly speaking, that even if there is a process of judicial review, that would not address the question that I raised with Simon Hughes of whether the decision of SIAC to exclude evidence from the detained person was a reasonable or unreasonable decision? That decision, which goes to the root of justice, could not be the subject of any justiciable appeal.

Photo of Mr Denzil Davies Mr Denzil Davies Labour, Llanelli

One would have to consider each particular circumstance, but the exclusion of evidence could well be seen to be a considerable procedural defect and would constitute an error on the record.

The hon. Member for Southwark, North and Bermondsey cited Lord Donaldson's speech in the other place. One of the most interesting speeches in the other place was made by Lord Lester of Herne Hill, who has considerable experience in these matters. I read his speech carefully and he concluded that judicial review would "do no harm" and was of "symbolic value". Symbolism is important, as is doing no harm, but we are legislating in a difficult area and we should not put into legislation, even with the best will in the world, something of which the best that can be said of it is that it would do no harm. I apologise for saying so, especially as a lawyer, but on this occasion my right hon. Friend the Home Secretary has just about got it right.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office)

It is absurd that we are left with a minute to discuss this point further, but we are. I shall ask my hon. Friends to abstain in the Division on this matter. We shall see what the other place makes of the proposal. The debate there will be longer, and there are people in the Lords who know more about this subject than any others in the kingdom.

I hope that it will turn out to be true that this is an adequate form of judicial review. On that basis, we shall abstain.

It being half-past Nine o'clock, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Orders [19 November and this day.]

Lords amendment agreed to.

Mr. Deputy Speaker then put the Questions necessary for the disposal of the business to be concluded at that at that hour.

Lords amendments Nos. 10 to 22 agreed to.

Motion made, and Question put, That Government amendments (a) to (f) thereto be made—[Mr. Heppell.]

The House divided: Ayes 294, Noes 85.

Division number 108 Anti-terrorism, Crime and Security Bill — Government Amendments

Aye: 294 MPs

No: 85 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 275 MPs

Absents: A-Z by last name

Question accordingly agreed to.