My Lords, this group of amendments deals with our core objection to the Bill as it stands. Given that not all noble Lords will have sat through the debates so far, I hope that the House will think it useful if I briefly explain the context for the amendments. The issue is whether the extensive powers reserved by the state should be confined to threats to national security. It is all about reconciling our duty to safeguard our traditional civil liberties with our duty to forestall as best we can any emergency threats to our national security.
Striking the right balance between those duties is an exercise in art, not science; prediction, not measurement. If laws alone could inoculate the body politic against extreme violence, there would be no argument on the amendments. However, as we know only too well from recent history, reaction to authoritarian legislation can beget the very thing that it is designed to prevent. Just as the bodily rejection of inappropriate medication can be worse than the complaint, so it can be with such legislation.
It is counter-intuitive to believe that civil liberties are best preserved by suspending them. That tends to be a poor way of winning the battle for hearts and minds, here or abroad, without which no long-term national security is possible, particularly post-September 11th.
What does Clause 17 allow? As its title says, it extends existing disclosure powers in the 66 statutes listed in Schedule 4. Each of those statutes was carefully considered and contains differing and often highly detailed regimes of required confidentiality and permitted disclosure. The core of our disagreement with Clause 17, and the other clauses to which this group relates—Clause 19 and in particular Clauses 103 and 104—is that this widespread extension of existing disclosure is not confined to the protection of national security or to the fight against terrorism.
It is instructive briefly to look at the precise effect of Clause 17 in relation to the 66 scheduled statutes, as that has not been done so far. For example, the Companies Act 1989 provides a strict regime of confidentiality, to which Section 87, as mentioned in Schedule 4, will be excepted. However, the exceptions in the Bill as drafted are strictly limited to enabling a relevant authority to discharge a relevant function, for example, the Treasury, if interests of investors or public interests are involved, and the police in respect of information needed in pursuance of European Union obligations. The only other exception in the Companies Act to breach of confidentiality is in respect of relevant proceedings, but not, I emphasise, investigation of those proceedings—I refer to paragraph (a) of Clause 17(2)—let alone for the purposes of initiating such investigations—I refer to paragraph (b)—and certainly not in respect of facilitating a decision as to whether or not to proceed to investigate as a prelude to any criminal proceedings—I refer to paragraph (d).
Furthermore, Section 87 of the Companies Act gives a highly detailed description of what are relevant authorities and relevant functions by which to judge whether or not disclosure falls within the general rule of confidentiality, or rather within exceptions to the general rule of confidentiality.
I refer briefly to the Health Act which is also specified. On considering that Act, one realises what an intricate and carefully balanced web of protections is provided which will, frankly, be blown apart if Clause 17 as drafted is approved. It provides a comparable framework to the Companies Act, so that there can be no disclosure for the purposes of criminal proceedings outside the United Kingdom, and disclosure for criminal offences within it is confined to serious arrestable offences. I need hardly say that nothing like that is included in Clause 17.
As I am sure the House is aware, Clause 17 will override those restrictions. It is extraordinarily wide. First, any public authority here or abroad can request information from the commissions and bodies connected with the 66 statutes I mentioned. However, what some noble Lords may not appreciate is that Xpublic authorities" in this context are extremely widely defined and include private bodies and companies in so far as they have public functions such as running schools, prisons or railways here or abroad. Secondly, contrary to what the noble Lord, Lord McIntosh, first understood in debate, a request for disclosure from any of those public authorities at home or abroad can be refused only on good grounds or what are known to lawyers as Wednesbury principles; that is, such bodies are judicially reviewable if they refuse a request for disclosure. Thirdly, the scope is not confined to serious offences but extends to any offence whatever. Those can include private prosecutions. Moreover, the list of 66 statutes is not exhaustive and can be added to by statutory instrument. However, to be fair to the noble Lord, Lord Rooker, an amendment has been tabled to ensure that that at least is subject to affirmative procedure.
Where requests are made by public authorities or individuals abroad there is no safeguard that the legal system, procedures or integrity of the relevant foreign jurisdiction are comparable to our own and provide comparable protection. Furthermore, the citizen does not have the safeguard that exists in the Regulation of Investigatory Powers Act which requires prior authorisation before any request for disclosure can be made.
The Government say, and have said repeatedly, that none of those matters should be too worrisome due to the provisions of the Human Rights Act. However, in normal cases a citizen whose rights of confidentiality have been breached will never be aware of that. Even where he or she is aware of it, resort to Human Rights Act remedies is extremely uncertain and expensive. One can exercise those rights only in the course of proceedings and, what is more, the rights themselves are extremely generally framed. I put it to the House that few indeed will treat that as a real and effective protection against disclosure of confidential information.
Above all—I have hinted at this—Clause 17 is not confined to disclosure in connection with prosecutions, public or private, or investigation of prosecutions, but extends to decisions as to whether to initiate an investigation and even to inquiries before that stage. These amendments endeavour to rectify some of those defects, particularly as regards the issue of scope.
I believe that the unanimous view of this House is that the Government are fully entitled to endeavour to deal with unexpected and emergency threats of terrorism. We have endeavoured to define the scope of disclosure in a practical way that will give the police and other authorities the scope they need in order to do their work. Therefore, we have stipulated that whether disclosure is voluntary or is supplied on request it can be provided where the public authority Xbelieves or suspects" that the relevant information,
Xmay relate directly or indirectly to any risk to national security or to a terrorist".
The lowest hurdle, therefore, under the amendment to this and the other clauses in the group, is that there must be a suspicion that disclosure may indirectly relate to such a risk.
I refer to the amendment that we tabled in Committee which would have subjected disclosure requests to prior authorisation. We still believe that that would aid the overall purpose of the statute in circumstances of potential threat. However, in discussions and in correspondence, the noble Lord, Lord McIntosh, was unconvinced of the need for that and we have bowed to that at this stage. However, I urge the Government to reconsider that matter in advance of next Tuesday's consideration of the Bill as we believe strongly that such a measure would aid and abet the swift disclosure of information by public authorities to which requests are made. I beg to move.
My Lords, in speaking to Amendment No. 1, I wish to speak also to Amendments Nos. 2, 5 and 10. My noble friend Lord Dixon-Smith will speak to Amendment No. 9 which relates to Part 10 and my noble friend Lord Northesk will speak to Amendments Nos. 10, 12, 15 and 19 which relate to Part 11.
It is important at the outset to make it absolutely clear that while this overall grouping attaches to several parts of the Bill, we shall make the same point; that is, that whether it is a matter of extending powers of disclosure of information and retention of communications data involving investigatory authorities such as the National Criminal Intelligence Service, the National Crime Squad, the Commissioners of the Inland Revenue, the Commissioners of Customs and Excise or police powers, as expressed in Part 10, those increased powers should be used only by the authorities involved in counter-terrorism.
It gives me pleasure to follow the noble Lord, Lord Phillips of Sudbury, as he and I have, on behalf of our parties, had numerous discussions in relation to Part 3. The noble Lord and I are at one on this issue. As the noble Lord said, we are concerned that this and, indeed, the other parts to which I referred, as currently drafted will inevitably lead to nothing short of excessive state interference in our rights of privacy and individual freedom. It is important, therefore, that this emergency Bill must not be used as a convenient vehicle, indeed, as an excuse, to legitimise fishing expeditions on the part of authorities under the guise of pursuing any criminal investigation.
To extend the power of disclosure in criminal proceedings to disclosure for the purposes of any criminal investigations, however remote or minor, anywhere in the world in this emergency legislation is unacceptable. There is no doubt that these powers will become commonplace in any investigation simply to see what turns up. As a result, quite understandably people will become less inclined to assist public authorities. They will feel that their right to privacy has been revoked and they will be less frank. Is that what the police and intelligence services want? I think not. However, we argue that they would be much more likely to respond—indeed, I suggest, they would have no objection—if the information were genuinely intended for the purposes of counter-terrorism. It is as simple as that.
We expressed those concerns both at Second Reading and, again, in Committee. Each time the Minister worked hard to assuage our fears, without success. We were then grateful for the opportunity of a further discussion with the Minister and officials, conscious of the Government's repeated chant: XWe are listening". At that meeting a compromise was suggested which both the Liberal Democrats and we believed could be acceptable. Perhaps I may say that the noble Lord, Lord McIntosh of Haringey, in the spirit of listening, agreed that it was worthy of further investigation.
It was believed that that investigation would continue from the Monday until the Wednesday morning—that is, almost two days—if the key interested parties advising the Government of the need for this part to be drafted in such a way were to be consulted. In fact, the Minister wrote to the noble Lord, Lord Phillips of Sudbury, with a copy to me, that same afternoon, stating the reasons why our suggestion could not be carried. So much for consultation; so much for listening. The Government have shown by their actions thus far that they will not listen. Considering the true import of some parts of this draconian Bill, that is most regrettable.
While we are determined to support the fight against terrorism, a fight against terrorism it must be and not, in the process, an unnecessary erosion of our right to privacy. The line must be drawn somewhere between terrorism and minor traffic offences. The Bill fails in that task. Following much thought and much discussion, we are certain that the task should be revisited, if at all, with great care another day in a separate Bill. That is why we believe that these amendments are so necessary.
My Lords, in effect these amendments give effect to the recommendations made unanimously by the Joint Committee on Human Rights, of which I am very proud to be a member. In our first report, we dealt in paragraphs 53 to 55 with our concerns and our objections in principle. We returned to the matter in paragraph 24 of our most recent report. We explained what we had said previously and then expressed our view that there remains a significant risk that disclosures will violate the right to respect for private life under Article 8 of the European convention. We consider that to be the case because of the range of offences covered, the lack of statutory criteria to guide decisions and the lack of procedural safeguards to be followed when deciding whether it is necessary and proportionate to make a disclosure of personal information. We published as an appendix to our report the important written evidence of the Information Commissioner to the committee in that regard. We explained that we endorse that evidence and commend it to the attention of each House.
I had the benefit of listening to the noble Lord, Lord Rooker, on the XToday" programme this morning. It seemed to me that he was evincing open-mindedness on behalf of his department and the Government. I believe that I can speak for the whole Joint Committee in saying that we hope very much that these amendments, or something very similar to them, will commend themselves to remedy what would otherwise be a serious blemish in this legislation.
My Lords, it should come as no surprise to your Lordships that I support the thrust of all these amendments, particularly those relating to Parts 3 and 11. It may be helpful if, at the invitation of my noble friend Lady Buscombe, I add a few words about Amendments Nos. 10, 11, 12, 15 and 19, which are concerned with limiting the scope of Part 11.
I need not detain your Lordships long. After all, it was only two days ago that we were in Committee on this part. None the less, I believe that it is worth repeating a question that I have asked consistently since we began scrutinising the Bill. The Minister has been studious in advising us that thus far communications data have been central to the investigation into the events of September 11th and that the assistance afforded by CSPs has been Xexcellent". All of us are delighted to hear that. However, if investigations have proceeded and are proceeding so successfully and without compromise under the existing law, what need do the Government have of such a broad scope of data retention powers on the face of the Bill?
None of us disputes that law enforcement should have adequate powers to counter the threat of global terrorism. We all share that aspiration. But those powers should not overreach themselves unnecessarily. As our debates on this issue have demonstrated so visibly, there is widespread concern that that is precisely what the Bill does.
Moreover, as I have argued consistently, there is a very real risk that the vast accumulations of data that the Bill currently envisages could prove counter-productive in terms of providing the type of focused intelligence that is required to combat terrorism. By making the powers too broad, the Bill could have the perverse effect of hampering our law enforcement agencies and intelligence services in their admirable work; nor should we underestimate how great a problem that would present in terms of data subjects' right of access to information about them under the Data Protection Act.
I turn briefly to the amendments. I hope that your Lordships will understand that there has been something of a rush to convert from Committee to Report stages in less than two days. Therefore, I apologise for any confusion that may have arisen on the Marshalled List. Noble Lords will have observed that Amendments Nos. 10 and 12, taken together, are, as it were, sub-sets of Amendment No. 11. Be that as it may, their purpose is clear. For avoidance of doubt, I merely state that Amendment No. 11 is our preferred choice. Through it, we have sought to move towards the Government's position by retaining the generality of crime purpose on the face of the Bill but constraining it by referring it back for national security purposes.
I turn to Amendment No. 15, which seeks to plug what appears to be a gap in the Bill. It seeks to ensure that, if it becomes necessary for the Secretary of State to impose a mandatory data retention scheme, that, too, will be subject to the same purposes as the voluntary scheme.
Finally, I turn to Amendment No. 19, which seeks to ensure parity and consistency of the Bill's aims and purposes with the Regulation of Investigatory Powers Act. In sum, what is proposed for Part 11 is a package of linked amendments—Amendments Nos. 11, 15 and 19—as the means of properly limiting the scope of the proposed data retention provision without in any way undermining the capacity of law enforcement authorities and intelligence agencies to counter the threat from global terrorism.
My Lords, perhaps I may be permitted to make an intervention. I have not done so yet in relation to this Bill; perhaps I may be permitted to do so now. As I understand the position, under the Bill the Government are permitting the police, investigating authorities and even courts to investigate people's financial affairs—that is, their bank balances, VAT records and all such other information. That may well be fine for the purposes of terrorism.
I believe that we are all agreed that, where prospective terrorists are at large, such information should be made available to those who are investigating them. But, as my noble friend Lady Buscombe said, it is quite a different thing to permit that type of investigation to be carried out for civil offences, such as, as she suggested, motoring offences. I cannot believe that any government would want that to happen.
I wonder whether, in his reply, the Minister could let us know whether it is the Government's intention that such investigations should take place into minor criminal matters or whether they are simply to be kept for terrorist occasions. If the latter, everyone will be with the Government. If the measures are allowed to extend to criminal matters of a minor nature, most people would be against.
Supposing information is gathered and persons are found to be innocent of the offence they were thought to have committed, what will happen to that information? Will it remain on file to be used on other occasions?
My Lords, the noble Lord, Lord Phillips, made an interesting speech. I have not been close to this part of the Bill so far but now I understand the amendments better. The noble Lord said that the idea that one can best preserve civil liberties by suspending them was rather strange. Does the Minister agree?
My Lords, a common theme runs through this debate, and Part 10, which deals with the extension of police powers, follows precisely the same principles that we have been arguing against since the Bill came before the House.
Whatever the logic, it is offensive that a Bill the House has been invited to argue in relation to a particular set of circumstances, as part of a specific emergency process, should seek to extend functions that are proper to that purpose to criminality at large. As I have said so often, crime is always with us.
Clause 90(4) states that,
XSubsections (3) to (5) shall not apply, but any relevant physical data or sample taken in pursuance of section 18 as applied by this paragraph may be retained but shall not be used by any person except for the purposes of a terrorist investigation"— which is absolutely fine—
Xor for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution".
We find it difficult to accept that extension, which goes beyond that required for the purposes of the legislation. We have tabled one amendment to Part 10, the effect of which is to confine use of the additional powers—which refer also to Northern Ireland and to Ministry of Defence and transport police where they are called in to aid normal police forces—to matters related to terrorism. That is a proper distinction to make. I hope that Amendment No. 1 and the amendments grouped with it will in due course be supported.
My Lords, as the noble Baroness, Lady Buscombe, remarked, this is not only an anti-terrorism Bill but a convenient vehicle for putting through a number of other measures. As to specialised forces, we would have much preferred separate legislation and now know that there is to be a police reform Bill. When it emerges, I trust that the relationship between specialised forces and Home Office police forces will be carefully examined. I increasingly sense that some historical anomalies need to be revisited.
I thank the Ministry of Defence for arranging for a senior member of the MoD Police to brief several of us on changes in that force. He was highly persuasive and told us a great deal about recent improvements in training, links with civilian forces and accountability. We were advised that three members of the MoD Police Committee are not either members of the Armed Forces or civilian members of the Ministry of Defence. That is still a small minority. They represent the customers of the MoD police and such representation on a force that has extensive contact with the public in a delicate area of policing will also need revisiting. The main purpose of many specialised forces is the security of sensitive property but they also have a relationship with the public in areas that go well beyond terrorism.
The first key limitation we seek in Part 10 is a restriction on its application to matters that are clearly concerned with terrorism, which is the purpose of Amendment No. 9. The second is a limitation on time—a sunset clause, to which I hope we will return later. The Bill's purpose ought to be seen—as the MoD police representative was arguing—as bridging a limited gap until a police reform Bill is introduced, not to provide general powers. Amendment No. 9 is a necessary part of the restrictions that should be built into the Bill.
My Lords, the measures to which the extended powers will apply are listed in Schedule 4 and include Section 24(1) of the Agriculture Act 1967—which lies behind the agricultural census that is undertaken twice a year and discloses details of all farming businesses. That information is collected for general statistical purposes but details of individual businesses have until now been kept confidential. It is a major worry to me and, I should think, to many other farmers that Clause 17 might permit the disclosure of such information generally. If it does, I shall certainly support my noble friend's amendment.
My Lords, I know that the House is concerned to preserve those elements of public and individual security that do not have to be diluted in the face of the present emergency. The noble Lord, Lord McIntosh, accepts that the term Xpublic authority" embraces a public authority outside the United Kingdom, including outside Europe. That term is defined in Clause 20(1)(a), which states that it has,
Xthe same meaning as in section 6 of the Human Rights Act 1998 (c. 42)".
Section 6(3) of the 1998 Act states that Xpublic authority" includes,
Xa court or tribunal, and . . . any person certain of whose functions are of a public nature".
Your Lordships will be pleased to hear that the term,
Xdoes not include either House of Parliament or a person exercising functions in connections with proceedings in Parliament".
We have here machinery that can result in confidential information being released to a foreign public authority. That could be the police or another body, certainly anywhere in Europe and arguably anywhere in the world. The proposal goes much further than the matter with which we are concerned. A public authority is also defined as any public authority, not merely the police. The ramifications of that are enormous and quite unnecessary. They would be curtailed by this group of amendments and I hope that noble Lords will support them.
My Lords, I take that argument further by pointing out that accepting that Xelsewhere" means Xoutside the United Kingdom" requires us to reconsider Clause 18. It will allow the Secretary of State to give a direction controlling what will or will not be sent to Xoverseas proceedings". Subsection (4)states:
XA direction under this section shall not have the effect of prohibiting . . . the making of any disclosure in pursuance of a Community obligation".
That also leads us straight into Community obligations that are likely to be taken on soon, for instance, with regard to Europol.
My Lords, during the Bill's passage through this House, there has been widespread—almost total—support for the Government's intention of combating terrorism. There has been an acceptance that they need additional powers and that those powers are valid. However, they are valid solely for the specific purpose of preserving national security and combating terrorism.
As we have heard, the Bill is drawn much more widely than that. The argument that the Government deployed in Committee was that their intention was to focus the use of the Bill's powers on combating threats to national security and on countering terrorism, but that they needed wider, broader powers because terrorists are involved in many other crimes—which is, of course, true. As we have heard, terrorists can be involved in drug running, people trafficking, money laundering and a broad spread of other crimes. That is why the amendments, which were drafted by my noble friends and the noble Lord, Lord Phillips, sought to preserve the Government's ability to tackle terrorists who are involved in other crimes by ensuring that whatever crime the Bill's powers are focused on, such powers must be related to combating terrorism.
I draw your Lordships' attention to Part 11, which is on page 62 of the Bill, and to Amendment No. 11. We spent much time in Committee discussing the vitally important subject of the retention of communications data. The Regulation of Investigatory Powers Act, which recently passed through your Lordships' House, is highly relevant to these provisions.
The Government's arguments about whether or not the Bill's powers should be limited to combating terrorism and the preservation of national security are, I suggest, polarised in Clause 103(6). That subsection states: XA code of practice"—relating to the retention of communications data—
Xor agreement under this section may contain any such provision as appears to the Secretary of State to be necessary—
(a) for the purpose of safeguarding national security; or
(b) for the purposes of the prevention or detection of crime or the prosecution of offenders".
Noble Lords on the Conservative and Liberal Democrat Benches—and, indeed, occasionally on the Cross Benches—argued that that is an extremely broad power.
Amendment No. 11 seeks to restrict that broad power in paragraph (b) and would insert:
Xfor the purposes of prevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security".
In terms of drafting the code of practice, that paragraph would surely give the Government every possible power that they might require to address the issue about which we are all concerned—national security. The Government's argument that terrorists are involved in other crimes, such as drug running, is not relevant. If the Government seek to retain paragraph (b) as it is currently drafted, that is surely a tacit admission that they wish to use the Bill for all sorts of purposes that are wholly unconnected with counter-terrorism.
This House and another place recognised the Government's need to take additional powers, but we have not said that they should be issued with a blank cheque under the cover of threats to our national security. I support the amendments.
My Lords, I shall do my best to respond to the amendment and those grouped with it; if those amendments were agreed to as a group, they could be described as wrecking amendments. That is our view.
No, my Lords, I have only just started. I hope that the noble Lord will permit me to continue. I am not seeking to wind anyone up.
My Lords, I told the Minister not to start trouble at the end of the evening. I should explain to noble Lords that the noble Lord and I had a conversation in which I said, XDon't make provocative statements right at the end of the evening, because that winds everyone up". He obviously misunderstood my advice and decided to do that right at the beginning instead.
I seek to be constructive. Does the Minister think that the second report—actually, I believe that it is the fifth report—from the Joint Committee on Human Rights, which is on the Bill and which makes some pertinent recommendations, is a wrecking document? Many of its recommendations are very similar to the amendments.
No, my Lords, I do not accept that my description applies to any of the Select Committee reports that have come jointly from this House or from the other place. I shall in due course refer to a new report—it was published today—by the Defence Committee of the other House. There are positive suggestions in many of the reports that we are still—I stress that I speak in the present tense—doing our best to respond to. As I speak, they are being worked on.
The noble Lord, Lord McNally, rightly told the House about what he said to me this morning. I obviously misunderstood him. However, I still maintain that, taken together, if this group of amendments were pressed as a group, they would wreck the Bill. I shall explain why. I shall be brief because we had an extensive debate in Committee—I make no complaint about that. In Committee, noble Lords did a good job of scrutinising a complicated Bill that will affect many government departments.
In Clause 17, limiting disclosure of information to cases in which the public authority suspects or believes that information is related to a terrorist threat or a threat to national security raises a central issue that undermines many of the contributions of noble Lords. On the face of it, the proposition is attractive, but it would render the clause ineffective and would not lead to the result that noble Lords had in mind when they tabled the amendments.
It is important to point out that it is frequently impossible for a public authority, which often does not have all the facts of a case, to determine whether a particular piece of information is relevant to a case of terrorism or a threat to national security. That is rather like noble Lords and their children or grandchildren trying to put a jigsaw together. You tip all the pieces out. You may have an idea of the picture but half-way through you realise that the picture is not quite right and ask yourself, XHave we put the wrong pieces in the jigsaw?" You have to examine every single piece to ensure that you have got the picture right. You might start by saying, XThe sky's the wrong colour. That piece doesn't fit here". It is only when pieces on the other side of the picture are put together that you see the connection. I use that analogy, for example, when we consider the activities of the investigating authorities. That thread has to run through the Bill and these clauses. In the original drafting of the Bill, and since, we sought to define in legislative terms. Noble Lords pushed us to rewrite the clause so that the definition would refer to terrorism only.
My Lords, I am grateful to the Minister for giving way. Is the noble Lord aware that the Joint Committee on Human Rights agreed with the Select Committee on the constitution of this House that the inclusion of non-emergency measures was inappropriate in emergency legislation required to be considered at such speed? Is he aware that all noble Lords across the House want this Bill to be an anti-terrorist Bill but they want it to satisfy principles of legal certainty and proportionality and not to go wider than that? The right of personal privacy with which we are concerned is a fundamental right.
My Lords, that is all very well if you stick to the definition of terrorism. We are not doing that because they are not working that way these days. International terrorists have rewritten the rule book. They operate in ways that were not conceived of a decade ago. We have to take appropriate measures.
I set out a brief response to each of the amendments. Turning to Clause 17, at the time a public authority chooses to disclose to the police, say, an address which they suspect has been used by criminals, it may have no idea that those who live there are part of a terrorist network. It would not know. Its piece of the jigsaw is not connected to the parts held by other authorities. It is only in the course of the investigation that the situation becomes apparent. Under the Bill as drafted, the police would receive information related to suspect criminal acts. The police are the investigators. It is their job to put the various pieces together to see whether they make a picture. Many times they will not, but it is their job to add those pieces to the jigsaw.
My Lords, I have listened on many occasions to this argument from the Minister. He says that we have to have powers to deal with every possible crime because we do not know how it will all fit together and we do not see the picture at the end.
Surely it is possible, as the amendments seek to do, to confine the scope of the inquiry of the investigating authorities, whether the intelligence services or the police, to anti-terrorism. If they act in good faith, as I am sure they do and, for example, say to the public authorities which are required to disclose something, XWe are doing this in order to investigate terrorism", that is enough. No one will question it beyond that. However, with great respect, the Minister is instituting a dragnet which covers the whole realm and enables every possible corner of people's lives—their privacy, their tax returns and everything else—to be investigated by the intelligence services. The Minister has failed to answer that argument at each stage of the Bill.
My Lords, I remind the House that we are on Report. I do not want to read out everything that the Companion states, but we are already out of order. However, the Companion states that arguments which have been fully deployed in Committee of the Whole House should not be repeated at length on Report. Noble Lords should speak only once. At the end of the Minister's reply the only person who should speak is the mover of the amendment except for very short questions of fact.
My Lords, I accept what the noble Lord, Lord Thomas, says. Clearly, we shall disagree on the issue. He obviously has a different view from the Government on the way the police conduct their investigations. We think that the police should have the power to assemble the pieces of the jigsaw. They have only the power to ask—
My Lords, this is a question of fact. I hope that the Minister will agree with me that if some crime has been committed, the police already have plenty of criminal law under which to investigate it. That is the point. We are dealing here with the extension of that power. If, under their criminal investigations, they find a connection to terrorism, that is a bonus. What is not right is to use these extensions of the law ab initio for criminal investigations. That is the distinction.
My Lords, disclosure regarding criminal proceedings would be accepted because it is part of the statute. But if one does not have the information to start the criminal proceedings one has to investigate. The police are not getting a brand new power. They are getting a power to investigate prior to proceedings. It is widening an existing power to seek that information. To that extent, it aids their investigation: the putting together of the jigsaw in respect of terrorist offences. That is power that they should have and be able to use.
On overseas disclosures, I was somewhat taken aback. It will be very difficult for this country to fight international terrorism if we cannot co-operate with so-called Xforeigners"—used almost as a dirty word in this debate. Of course we have to co-operate with foreigners if we are to fight international terrorism. But the information disclosed will be fully compatible with the Data Protection Act and the Human Rights Act. All those checks are in place. We are not riding roughshod over people's civil liberties. It is axiomatic that we have to co-operate with foreigners.
My Lords, the noble Lord used a rather unexpected expression. He said that the police have to investigate before they can take proceedings. That has always been the case. It does not need to be written into a statute, even this statute, in any fresh way.
My Lords, with respect to the noble Lord, the provisions need to be written into this statute because the police do not have the necessary powers, hence the extension of existing powers in the Bill. As an aside, perhaps I may speak to—
My Lords, will the noble Baroness please give way? I shall now read out our rules on Report.
XOn report no Member may speak more than once to an amendment, except the mover of the amendment in reply or a Member who has obtained the leave of the House, which may only be granted to: a Member to explain himself in some material point of his speech, no new matter being introduced; the Lord in charge of the bill; and a minister of the Crown.
XOnly the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation to the minister or where the minister speaks early to assist the House in debate.
XArguments fully deployed in Committee of the whole House"— here I paraphrase: these arguments have been very fully deployed in Committee; I am not sure whether the noble Baroness was present—
Xshould not be repeated at length on report".
Could we now stick to our rules on Report?
My Lords, I was not given a chance to ask my question. Perhaps I may ask a question of elucidation on the Minister's point about data protection. I am sure that the noble Lord is more of an expert on data protection than I am.
The proposed framework decision on terrorism, which is being discussed today by the Justice and Home Affairs Ministers in Brussels, provides for exchange of information including where there is suspicion of a terrorist offence. What is the data protection regime which applies to that? Under the third pillar the normal EU directive on data protection does not apply. There are ad hoc data protection regimes for different parts of the third pillar. Can the noble Lord explain to me what is the regime for data protection and the exchange of information under the framework decision on terrorism?
My Lords, I shall take advice on this matter. I am not up to date with the negotiations in Brussels today. The content of the Bill which this House is now debating fully complies—governments can get it wrong—as regards access and exchange of information, with both the Data Protection Act and the human rights legislation. There are no new powers being given to the police in this Bill. It is a power to disclose voluntarily to the police and for them to be able to ask questions. We are not inventing the wheel here and that point has to be taken on board.
Perhaps I may say something about Amendment No. 3 standing in my name. I hope that it will be accepted as a response to the debate. When one wants to accede in debate it is not always possible to be fully certain that the wording is correct. We had to consider the amendment tabled by the noble Lord, Lord Goodhart, at Committee stage on 28th November. Therefore, I hope my amendment is acceptable. I cannot telegraph everything for the other day of the Report stage.
I say to the noble Viscount, Lord Goschen, as regards Clause 103 and the code of practice, that we shall be bringing forward an amendment in due course in this House to make sure that the code is subject to the affirmative resolution procedure of both Houses of Parliament. I hope that that will meet some of the points made in Committee concerning data retention. The amendment is not on the Marshalled List at the moment but it will be forthcoming. I hope that it can be produced at Third Reading, but if not, it will have to be dealt with in the other place. I hope that that will meet some of the issues because the code of practice cannot become reality, as we agreed, unless, first, industry agrees with government and, secondly, the Information Commissioner agrees with it. It is voluntary and there has to be consensus.
In order to concrete that in, we shall make it subject to the affirmative resolution procedure. That may go some way to meeting the point made about the service providers and their comfort blanket in relation to what will be required of them under a voluntary code of practice in retaining data which they believe may upset their customers. I can only telegraph that amendment today because it is not on the Marshalled List. We hope to list it on Tuesday.
My Lords, the noble Lord mentioned the point that I made and referred directly to the clause. I welcome his announcement that the affirmative procedure will be applied, but that does not go any way towards assuaging our concerns, although it is a welcome development.
Can the noble Lord explain in very clear terms what he believes would be the effect of accepting Amendment No. 11 of the noble Lord, Lord Phillips of Sudbury, to Clause 103? That would allow the Government to put into the code of practice any provision which they required after consultation, dedicated towards addressing national security and for the purposes of the prevention or detection of crime or the prosecution of offenders which might relate directly or indirectly to national security?
The noble Lord, Lord Phillips, could not have been more helpful in drafting the amendment and casting it as broadly as he possibly could. What will the Government be unable to do if they accept the amendment?
I shall come to that. Amendment No. 5 parallels Amendments Nos. 1 and 2 and to repeat myself possibly would not be fruitful. It means that disclosure may be to anyone and not just to those falling within the Regulation of Investigatory Powers Act, the FSA and the DPP. The request remains solely from within RIPA, plus the FSA and the DPP. I have already outlined the key aspects of the amendment which parallels what arose in relation to Clause 17 and my responses to Amendments Nos. 1 and 2. It does not make sense to revisit that issue.
I shall therefore confine my comments to the question of limiting disclosure, terrorism and the threats to national security. In many ways this is also repetition, so I shall be brief. The amendment would severely limit disclosure. Clause 19 allows Customs and the Inland Revenue to disclose information to law enforcement and intelligence agencies for the investigation of crime. Reducing that gateway simply to cases of terrorism or threats to national security would be counter-productive and reduce the effectiveness of fighting terrorism.
Perhaps I may give an example. There is a proven link between terrorist groups and criminal activities for which Customs are responsible. We know that some terrorist groups have been engaged for some time in large-scale drug smuggling and in the massive evasion of excise duties on cigarettes and alcohol. At the time Customs become aware of that, they may not have appreciated the significance of what is involved in terms of terrorist investigation and may not immediately recognise the connection with a terrorist group. They may simply believe that the Inland Revenue has been ripped off, the Chancellor is charging too much in tax and the criminals are trying to make a buck on the side with bucket shops around the country.
Under the gateway, as drafted, if the safeguards are satisfied, the information could be passed to the police. Under the amendment the information would remain with Customs and a potentially vital piece of the jigsaw of intelligence would be denied and never reach the police. The same applies to Customs as regards the money laundering regulations.
We also know, as regards the work of the Inland Revenue, that terrorist groups are relying on the work of the informal economy, the hidden economy, which is massive in some countries. It cannot be measured, but it is worth billions of pounds. It is estimated that 600,000 people enter Europe each year to work illegally. They pay to get there. Many of them are part of trafficking networks, providing more money to international traffickers in people than is earned in drug trafficking. Trafficking in people is big business. It may be that some of that money is used to fund terrorism, but the Revenue does not have the expertise to recognise terrorist activity in every case. Therefore, there is a need for it to be able to assist the police with its part of the jigsaw.
I turn briefly to the amendments mentioned by the noble Viscount. Amendments Nos. 10, 11 and 12 would restrict the second purpose for which data may be retained by communications service providers to either national security alone or to national security and the prevention and detection of crime which relate to it. All the provisions of this Bill are intended to counter terrorism. But for 11th September we would not be here today debating this Bill. That is the reality. We would not have had this Bill. The Bill and its content were not planned. I know that the bribery and corruption clauses are a separate matter, but I do not think there is an issue about them in this House. It is important that, in bringing forward this legislation, we are able to do so in such a way that it helps in the fight against terrorism internationally in co-operation with our partners or on our own and is recognised as the precautionary response that we need to make on behalf of the public who would never forgive us if something happened and we had decided that the appropriate legislation was not worth it because we did not want to bother Parliament and we could not guarantee that a particular clause was directly related to the act that had taken place. We do not want to take a narrow view of the purposes of the legislation because it would hamper our effectiveness in combating crime.
I said in Committee that we cannot meaningfully distinguish between terrorism and other forms of crime for a couple of reasons. Terrorists are criminals anyway and other criminal acts foster and resource terrorism. One example that I have given, which I do not need to repeat, is the importation of cigarettes. Some 40 million cigarettes were seized from a ship and it was known that a large proportion of that consignment was destined to criminals linked to paramilitary organisations. The idea that criminals are not connected to terrorism is wrong. We need to be able to consider all the pieces of the jigsaw.
My Lords, my noble friend knows that I intensely dislike parts of this Bill. That will be made clear on Monday. However, I found his argument about the pieces of the jigsaw totally compelling. That appears to me to make good sense. I do not find the wording of Clause 17(2)—
Xthe purposes of any criminal investigation", and so on—at all troubling. But I understood one or two noble Lords to be asking a slightly different question. It would help the House if my noble friend placed his answer on the record.
I believe that noble Lords are worried about what one may call a Xrandom walk" through everyone's tax returns to see what may turn up. As I understand my noble friend, that activity would not be possible; for example, the authorities could not look at my tax return or that of my noble friend just because they thought that we might be engaged in criminal or terrorist activities as they would have no reason to believe that. Can the Minister reassure the House that that kind of random trawl is not suddenly to be permitted under this legislation?
My Lords, absolutely. That is one of the problems. We need to take appropriate action because criminal acts are widespread and the funding of terrorism is not always known. It is possible that Joe Public will believe that the Government will have a way into his bank account, into his finances and into his personal life. That is not the case. The authorities must have good reason to ask questions. The public will be covered by the data protection and the human rights legislation.
There are no powers that allow for widespread trawls through people's tax affairs and bank accounts. That is not what we are about. The powers in this legislation will not cover that. My noble friend can rest assured. The powers have to be precautionary and proportional; otherwise we shall fall foul of the human rights legislation to which we have signed up. There is no derogation from the Human Rights Act in this part of the Bill. To have that kind of intrusive activity would not be proportional. We would certainly be brought to book if that ever occurred. That is an issue on which I may not be able to satisfy many noble Lords.
Amendment No. 15 specifies that an order under Clause 104 can be made only for the purposes prescribed in the previous clause, which forms part of this discussion. I can assure noble Lords that the order under Clause 104 would have to be restricted to those purposes, as we are constrained by EU Directive 97/66/EC on data protection in the telecommunications sector. We seek to work within the legal constraints that are already in place. The directive to which I have referred allows data to be retained beyond the period for which it is required for business purposes only for restricted law enforcement purposes. We cannot act in contravention of EC law so the amendment is unnecessary.
The MoD amendments, Amendments Nos. 6, 7 and 8, relate to Clause 99. Several noble Lords referred to them. I shall seek to conclude my remarks by responding to those amendments, although there is a point about agricultural disclosure which relates to what I said earlier. The legislation is such that the police can acquire the information pursuant to criminal proceedings, but they have to carry out an investigation to discover whether the criminal proceedings are warranted. It is an extension of police powers; it is not a new police power. It is a pre-proceedings power that does not exist at the moment in our legislation.
I ask your Lordships to reject Amendments Nos. 6 and 7. I shall give the House some examples to explain why these amendments would severely restrict the ability of the Ministry of Defence Police to counter terrorism. Often the suspicious behaviour of ordinary criminals is no different from that of terrorists preparing to make an attack. A Ministry of Defence police officer may be on patrol outside a defence establishment when he passes a stationary car. He sees the driver and the passenger duck down as he drives past and then the suspicious car starts to drive off. Immediate action is required. But how is the officer able to assess whether the individuals are criminals planning a burglary or terrorists planning an attack?
If these amendments were accepted the officer would not be able to act without seeking the permission of the local police, so he would not be able to take urgent, but necessary, action. In that kind of situation the MoD police officer needs to be able to act. Let us suppose that those in the car had a primed bomb or a mortar in the boot and the officer had been able to discover that. Will noble Lords vote for an amendment that would prevent a MoD police officer from acting in those circumstances?
A further example is that terrorists invariably carry out preliminary assessment surveys and make dummy runs of their plans. They must have done that before they mortar-bombed the Cabinet a few years ago. They must have practised and they must have made dummy runs. If the Ministry of Defence Police receive intelligence that a stolen car has been driven round or near a military base, they need to act urgently. The intelligence may give the officers a strong suspicion that a driver is a terrorist on a scouting exercise or a dummy run, but he may also be a car thief, stealing cars to order to take them to the docks or elsewhere for respraying.
If these amendments were accepted the MoD Police would not be able to act without the permission of the local police because of the absence of an imminent threat of violence, but the delay might mean that the opportunity to apprehend the suspect was lost. I am sure that noble Lords would not want to vote for that.
A third example is a suspect found near a sensitive defence property who fits the intelligence profile of a terrorist. He is seen using binoculars and cameras and attempting to conceal himself. He could be a twitcher or he might be a terrorist. The only way to find out is to stop him and question him and if reasonable suspicion is aroused, to search and, if necessary, to detain him. The search may reveal incriminating evidence such as notes, plans or weapons, but under these amendments the search could not be carried out no matter how strong are the suspicions of the officer because there is no immediate threat of violence. I am sure that noble Lords will not want to vote for an amendment of that kind.
I want to reassure the House that we are considering a power that is strictly limited to emergencies in terms of MoD Police operating outside the perimeter fences of MoD establishments. If the MoD police officer can contact the local police force without prejudicing the need to act, he must do so.
It is clear that your Lordships' concern has centred on the safeguards that are in place. In Committee the noble Lord, Lord Wallace, cited the report of the Joint Committee on Human Rights. To deal with the concerns of the Joint Committee, let me reassure your Lordships that the application of safeguards to the MoD Police is not unclear. The MoD Police receive the same training as members of other police forces. Indeed, Essex police force, which has recruited some MoD police officers, has been happy to deploy those officers on the streets without further training. MoD police officers who have been deployed in Kosovo to police communities there have received widespread praise for the job that they have carried out.
The MoD Police Force is subject to the Police Complaints Authority by virtue of an agreement made under Section 96 of the Police and Criminal Evidence Act 1985. The PACE codes of practice apply to the MoD Police, just as they apply to other police forces. The same goes for the reporting requirements. For example, if MoD Police officers exercise the power to search in Section 1 of PACE, they are required to make records under Section 3 like any other police officer. As for the police committee of the MoD police, the Secretary of State is in favour of openness wherever possible and is minded to have meetings of the committee held in public.
We propose to make further changes to the MoD Police disciplinary arrangements to bring them fully into line with those in other police forces. Furthermore, we propose to put inspection by Her Majesty's Inspector of Constabulary on a statutory basis in the police Bill. I remind noble Lords that those changes were part of the Armed Forces Bill.
Amendment No. 8 seeks to wipe out Clause 99. That clause is an important weapon in the fight against terrorism. The terrorist threat has existed for a considerable time. For that reason, similar provisions were introduced into the Armed Forces Bill. I have looked at some of the debates. I understand that, prior to the general election, because of the speed and the time necessary, the amendments were accepted by the Committee considering the Armed Forces Bill in the other place, which is a rather different procedure to the normal Bill procedure in another place, as noble Lords understand. The Committee said:
XWe believe there is a case for giving MDP officers greater powers than that of a citizen when they are attempting to deal with emergency situations which they come across in fulfilling their normal duties."
But since 11th September—this is the point of bringing forward these provisions now—the nature of the terrorist threat has changed. It is higher and different. These powers are an integral part of the response to the terrorist threat. Clearly, military bases and establishments are potential terrorist targets, as indeed are their personnel. There is a need for the MoD Police to be able to act at an early stage. For those reasons, it is no longer appropriate to restrict the emergency power to offences involving the use of a threat or violence, as was the case in the Armed Forces Bill. In our view, the Bill is the most appropriate vehicle for these reforms.
The Defence Select Committee in another place has unanimously agreed. In a report published today, it stated:
XWe have examined the proposals relating to the Ministry of Defence Police contained in the Anti-terrorism, Crime and Security Bill. We conclude that they are appropriate and sensible. There was a strong case for an extension of the MDP's powers before
XWe acknowledge the concerns which have been expressed about the possible adverse effects of extending the MDP's jurisdiction but we are not persuaded that they call into question the case for the proposed measures".
I have already dealt with those concerns. I remind your Lordships that there has been no criticism in this House or the other place of the extension of the jurisdiction of the MoD Police to act where crimes are directed at persons over whom they already have jurisdiction.
Similarly, there has been no criticism of the proposal to extend the jurisdiction of the MoD Police to act where they are requested by another police force; nor of the proposal that the MoD Police should be able to lend officers to other forces. Indeed, for a considerable time there has been a power to act on a request from local police forces in the vicinity of MoD land.
I conclude by giving noble Lords one further example why Clause 99—
Yes, my Lords. My noble friend Lord Bach says, Xyes". He is in the Ministry of Defence. If there is any problem about that I shall come back to the noble Lord. As far as I know, the Ministry of Defence is a UK organisation. We are here dealing with terrorism. Terrorism in the UK is a reserved matter for the Westminster Parliament. That should be a concrete answer.
However, I want to finish by giving a further example of why the clause is needed. At the present time, the Ministry of Defence Police cannot be requested by another police force to help protect injured service personnel in civilian hospitals. Because of changes with regard to military hospitals in recent years it is now more likely that our service personnel—perhaps injured abroad—will be treated and looked after in civilian hospitals. There is no power for the local police constable to ask the MoD Police to guard those personnel who, for obvious reasons, are in the terrorists' sights. Those hospitals are not on defence land. They are not Xin the vicinity of" defence land. I do not need to spell out the issue any more in order to make a case to noble Lords why Clause 99 should stand unamended as part of the Bill.
My Lords, we are grateful to the Minister for endeavouring to defend the Government's position in relation to the amendments. When he started he made a lively analogy with a jigsaw. A jigsaw has a big picture. It can be pieced together by reference to a clear picture. Clause 17, and the other clauses to which the group of amendments relate, has no picture. It has no limits. It does not even mention national security or terrorism.
So while the Minister made a strong case for Clause 17 with such a limitation, he made no case whatever for Clause 17 unamended. I put to your Lordships that it was perfectly legitimate, but wholly unrealistic, for the Minister to spend the past hour talking purely about terrorism and about the things with which we are all concerned. The clause goes to any criminal offence, however petty, wherever, whenever and by whomsoever. It is not confined to the police and security authorities. Any public authority, here or abroad, whether hybrid or not, can make any request for disclosure under this hugely wide Clause 17. And the good Minister cannot stop them.
Once this is through the net he cannot stop them. It will be no good him then saying, XOh my goodness, I did not intend it to relate to some appalling regime abroad trying to use these powers to force disclosure from some public authority here under this Act". It will be no use at all. It will be no use either the noble Lord saying, XBut this is only a discretionary power on the part of public authorities". The noble Lord, Lord McIntosh, repeatedly said that. It is not so. The fact is that anyone with an entitlement to request disclosure under the Bill will be able to seek judicial review for good Wednesbury reasons against any public authority that declines to give it. That is the legal fact.
To that extent, it creates a right to information. Repeatedly what has been said is, XBut don't worry, we've got the Human Rights Act". When will the Minister understand? I forgive him and the noble Lord, Lord McIntosh, a lack of understanding because they are not lawyers and have not seen this in practice. But if one deals with clients seeking a remedy where the only resort is under the Human Rights Act at large then the noble Lords would understand why on this side of the House—indeed on all sides of the House, because no one ever seems to speak for the Government on these measures—we feel so strongly that the remedies for the citizen are totally inadequate.
I turn to the scope of the power if the clause is amended in accordance with the group. I shall speak to Clause 17 because one cannot speak for all of them. If the amendments are agreed to, what will Clause 17 say? Where will it leave the hard-pressed police and security authorities? The noble Lord, Lord Rooker, said that this would allow the Xtwitcher-terrorist"—I think he described him—to get away. It was a bird watcher but also a terrorist under the noble Lord's scenario. He said that it would prevent the police from doing anything about the person who was at the boundary or whatever place it might be with his binoculars and all the rest of it. He said that there would be no immediate threat of violence. But that is not what Clause 17 says. It is not what our amendments do anything about. One does not need a threat of violence under Clause 17 for the powers to be exercised, even with our amendments. Our amendments give an enormously wide scope to the police and security authorities, because they allow them to take action under Clause 17 if there is merely a suspicion that there may be an indirect relationship with a risk to national security or of terrorism.
That must be the widest allowance in the history of British law. For the Government to say that that would tie the hands of the security authorities because it would not allow them to do anything unless there was an immediate threat of violence simply shows that the Minister has not endeavoured to understand what the amendments are about.
My Lords, I am saying precisely the reverse. The clause as amended would allow anyone who believed or had a suspicion that there might be an indirect relationship with a risk to national security to request or impart information.
The Minister spoke as if we were seeking to knock back the wide provisions of Clause 17(2)(a), (b), (c) and (d). I endeavoured earlier to explain how extraordinarily wide are the gateways that paragraphs (c) and (d), in particular, open up. But we do not intend to touch those. We will allow those wide gateways; we understand the difficulties of the security community; but we want those powers to be used in relation to threats to national security or to terrorism. That is all.
I shall not take the debate further, except to say that I cannot resist referring to the fact that, at various points during this hurried debate during the past few days, Ministers have expressed indignation at references from this side of the House to the powers of the Bill, taken collectively, to allow trawling and, as I put it in one debate, mass surveillance. Without the restrictions to matters of national security and terrorism, they are precisely that.
One has only to consider the provisions of Clause 103, to which one of the amendments relates, which, with Clause 104, will allow the Secretary of State to direct the entire industry of internet service providers to keep information for years on end—to warehouse it, as it is called. The Minister shakes his head, but that is the fact. Let us look at Clause 104: the Secretary of State can make a general direction; he is not subject to any say-so. The communications providers concerned will then have to keep communications data warehoused for years. Access to that data will be enabled under the existing provisions of the Regulation of Investigatory Powers Act 2000. We seek to confine that powerful tool in the Secretary of State's hands to national security and terrorist matters, and to ensure that that warehoused communications data should be accessed only for the same purposes.
I shall end by quoting from an article in The Times on Tuesday. We like to think that we in this country are the exemplars—the great preservers—of human rights and civil liberties. On the whole, I should like to think that and believe it. Walter Schwimmer is Secretary-General of the Council of Europe—which was, of course, the source of the European Convention on Human Rights that has found lodgement in our legislation in the Human Rights Act 1998. He said:
Xno one can deny that a derogation"— under Article 5—
Xis a very serious step. It is one that could set an unfortunate precedent for other countries where the rule of law tradition is not as strong. After September 11 no other European country has taken similar measures ... The fight ahead of us is not only against terrorism but also to protect democratic values and fundamental rights and freedoms so that they remain deeply entrenched in our society".
We are not saying that we should not seek a derogation; we all agree that we should. But, in relation to these measures, we say that that derogation must be sought only on the basis that the extremely wide—nay, unprecedented—powers should be confined to the purposes for which they were advanced. I wish to test the opinion of the House.
moved Amendment No. 2:
Page 7, line 17, at end insert—
X( ) Information may only be disclosed voluntarily under this section if the public authority concerned believes or suspects that the disclosure may be of information which directly or indirectly relates to a risk to national security or to a terrorist.
( ) Any request by a relevant public authority for disclosure of information under this section may only be made if it believes or suspects that that information may relate directly or indirectly to any risk to national security or to a terrorist.
( ) XRelevant public authority" has the same meaning as in Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) save that there is added thereto the Financial Services Authority and the Director of Public Prosecutions.
( ) XTerrorist" has the same meaning as in Part 4 of this Act."
On Question, amendment agreed to.
moved Amendment No. 3:
Page 7, line 21, leave out subsection (4) and insert—
X(4) The Treasury shall not make an order under subsection (3) unless a draft of it has been laid before Parliament and approved by a resolution of each House."
My Lords, this amendment was moved by the noble Lord, Lord Goodhart, in Committee. It conforms to the change made by the Select Committee on Delegated Powers and Deregulation from negative to affirmative resolution. I beg to move.
My Lords, I am slightly confused by the amendment which reads:
Xunless a draft of it has been laid before Parliament and approved by a resolution of each House".
That is fine at the present time, but I understood that the Government intended to put forward proposals for changes to your Lordships' House which would remove the power to reject orders and substitute the power only to delay them. Am I wrong?
My Lords, under the existing rules of this House and another place a distinction is drawn between a negative resolution, subject to annulment procedures, and an affirmative resolution. At the moment the Bill provides for a negative resolution procedure. This amendment provides for an affirmative resolution procedure.
moved Amendment No. 5:
Page 9, line 18, at end insert—
X( ) Information may only be disclosed voluntarily under this section if the Commissioners of Inland Revenue or the Commissioners of Customs and Excise believe or suspect that the disclosure may be of information which directly or indirectly relates to a risk to national security or to a terrorist.
( ) Any request by a relevant public authority for disclosure of information under this section may only be made if it believes or suspects that that information may relate directly or indirectly to any risk to national security or to a terrorist.
( ) XRelevant public authority" has the same meaning as in Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) save that there is added thereto the Financial Services Authority and the Director of Public Prosecutions.
( ) XTerrorist" has the same meaning as in Part 4 of this Act."
moved Amendment No. 22:
Page 10, line 38, at end insert—
X(1A) Any certificate issued under subsection (1) shall be accompanied by written grounds on which the belief or suspicion of the Secretary of State is reasonably entertained (without documents, materials, or information for which privilege from disclosure will be claimed on grounds of national security), which shall be subject to judicial review in the High Court."
My Lords, having carried this torch on Second Reading and in Committee, I am fully conscious that if I speak for too long it could well blow itself out. The amendment is wholly dependent on Amendments Nos. 32 and 33, which would delete Clause 30 and Clause 31(2). That would remove the ouster provisions to the jurisdiction of the High Court on judicial review. I shall support those amendments.
The purpose of the amendment is that, in accordance with minimum requirements of our tenets of natural justice, the Secretary of State shall issue with the certificate, under Clause 21(1), written grounds to the person certified in which the application for leave to proceed to a substantive hearing on judicial review may be made and that, at the substantive hearing, the material on which certification was issued should be made available to the judges designated to sit. As a measure of assurance for the security services, it is suggested that the judges so designated could be Privy Counsellors. The question of privilege from disclosure for sensitive intelligence was fully discussed in Committee.
Before I sit down, I wish to point out that the ouster clauses as drafted are wholly effective, are without the constitution—which it is the acknowledged function of your Lordships' House to safeguard—breach the separation of powers and usurp the functions of the judiciary. There is no just cause for excluding the person certified from access to judicial review, for limiting appeals on SIAC decisions to the Court of Appeal on an error of law or for excluding an application to the High Court for judicial review of a decision by SIAC.
The whole structure of the Government's proposed regime is unacceptable. I beg to move.
My Lords, with great respect to the noble Lord, Lord Campbell of Alloway, he may misunderstand the position. The noble and learned Lord the Attorney-General described it accurately in Committee, but I shall make some brief comments of my own.
SIAC was set up because English judicial review and Northern Irish judicial review proved to be a wholly ineffective remedy. That is why Amnesty, Liberty, the AIRE Centre and the Joint Council for the Welfare of Immigrants proposed to the European Court of Human Rights in the case of Chahal that the Canadian procedure along the lines of SIAC should be introduced. The SIAC procedure results in the establishment of an independent and impartial tribunal established by law which must act judicially under the Human Rights Act, including Article 6 of the European Convention on Human Rights.
That does not mean that the procedure of SIAC does not need to be improved and strengthened, or that there is a case for a complete ouster of judicial review—a matter that we shall come to on later amendments. However, it means that one should not exaggerate about the existing mechanism.
My party commended the Government for introducing SIAC. In Committee the noble and learned Lord the Attorney-General undertook that the suspected terrorist would be provided with a statement of the grounds for refusal before the appeal, provided it did not risk exposing closed material. My view is that that should be incorporated if not into the Bill, then into subordinate legislation. But, in any case, that undertaking is obviously vital if there is to be natural justice. Although I shall speak in favour of the amendment so far as ouster is concerned, I do not think it is fair to criticise the Government for using the SIAC procedure which I have said before, and say again, is a fair compromise.
My Lords, the issues involved in this amendment were discussed at some length in Committee. I shall cover them more briefly on this occasion.
There are two elements to the amendment, one of which is judicial review. I say at once that I am grateful for what the noble Lord, Lord Lester of Herne Hill, has said, confirming the comments I made in Committee and on Second Reading, that judicial review as properly understood is and was a wholly ineffective remedy. That is what the European Court of Human Rights said and that is why SIAC has been invented. I shall discuss that matter in more detail when we discuss Amendments Nos. 30 and 31, which is when I understand the substantive debate is to take place.
As I say, I do not want to enter a detailed discussion about judicial review at this stage. I refer to XJudicial Review" with a capital Xj" and a capital Xr" because, as noble Lords know, I regard SIAC as being judicial review with a small Xj" and a small Xr" in the sense of proper judicial scrutiny by a body including a High Court judge. The amendment of the noble Lord, Lord Campbell of Alloway, demonstrates precisely why judicial review in that classic sense is an inappropriate remedy. Let me explain why.
If the Secretary of State's certificate were—as this amendment proposes—to be accompanied by a list of reasons for the decision, the person against whom the certificate is issued will have an immediate right of appeal to SIAC. That appeal will consider not just the disclosable reasons for the detention—which is all that the noble Lord, Lord Campbell of Alloway, asks for in his amendment—but also the non-disclosable reasons for the decision; that is, the intelligence information on which the Secretary of State made his decision. Sensitive information is likely to be involved which cannot be disclosed without risk. However, SIAC would be able to look at that; the court on judicial review would not. The amendment of the noble Lord, Lord Campbell of Alloway, recognises that. A court on judicial review would not be able to look at the full picture; it would not, therefore, constitute a safeguard for the person detained. As I say, I shall develop that point later.
I refer to the other aspect of the amendment; namely, the requirement placed on the Secretary of State to provide written grounds for his belief or suspicion. As I explained in Committee, there is already on the face of the Bill an obligation to apply the SIAC rules. As I also explained in Committee, the SIAC rules already impose an obligation on the Secretary of State, if he wishes to resist the appeal, to give not just the reasons for resisting it but also to provide the evidence upon which his decision is based. He must provide the commission with a summary of the facts relating to the decision being appealed, the reasons for the decision, inform the commission of the grounds on which he opposes the appeal and provide it with a statement of the evidence which he relies upon in support of those grounds. That obligation is already on the face of the Bill through the SIAC rules.
In Committee I further undertook that, in addition to that full statement of the reasons, not limited to the disclosable part, at the time the certificate is issued—which I recognise may be shortly before the information is provided following an appeal—there will also be provided to the suspected international terrorist an outline of the case against him to the extent that that can be done without risking the exposure of closed material. Given the existence of an obligation through the rules imposed on the face of the Bill, I should hope that the undertaking I have given will satisfy the one remaining point which is simply to advance a little in time the understanding on the part of the suspected international terrorist of why he is detained. However, I repeat what I said in Committee, without elaborating on it; namely, that the person against whom a certificate is issued will immediately be able to appeal. He does not have to ask for permission, as one does on judicial review. He can go straight to SIAC and at that stage if the Secretary of State wishes to oppose the appeal he will then have to produce his full reasons for doing so, including all the disclosable material. I hope that that undertaking—
My Lords, I am grateful to the noble and learned Lord the Attorney-General for giving way. Am I right in thinking that in any event SIAC is under a duty imposed by Section 6 of the Human Rights Act to ensure a fair hearing and, therefore, natural justice must be done to the extent that is possible in the circumstances?
My Lords, absolutely. I think that I made that point on a previous occasion but certainly that is correct. I hope that in the light of my comments and given that, as I understand it, the main debate on judicial review is to take place on a later amendment, which is why I shall not deal with the matter in any more detail now, I respectfully ask the noble Lord to withdraw the amendment.
My Lords, this is not the time or the place in which to entertain an erudite discussion on the rectitude of the views of the noble Lord, Lord Lester, that are taken for granted by the noble and learned Lord the Attorney-General, and I do not propose to do so. As the noble and learned Lord the Attorney-General knows, I, for reasons I shall not repeat, do not accept at all that judicial review is an inappropriate or ineffective remedy. I do not accept, as he well knows, the criticisms that he has made of my amendment. Not a word has been said by the noble and learned Lord to excuse a breach of the constitution and the separation of powers. The merits of judicial review will no doubt be discussed on Amendments Nos. 32 and 33. Therefore, I beg leave to withdraw the amendment.
moved Amendment No. 23:
Page 13, line 10, leave out from Xmay" to end of line 11 and insert Xbe commenced only—
(a) within the period of three months beginning with the date on which the certificate is issued, or
(b) with the leave of the Commission, after the end of that period but before the commencement of the first review under section 26."
My Lords, government Amendments Nos. 23 and 24 give effect to the request of the noble Earl, Lord Russell, in Committee; namely, that the period of three months for appealing the decision of the Secretary of State to issue a certificate under Clause 21 should be capable of extension with the leave of SIAC. The amendments may seem a little elaborate as we have limited SIAC's discretion to allow appeals after three months to situations where the review of a certificate is not already under way.
Amendments Nos. 27 and 29 are consequential upon Amendments Nos. 23 and 24. Amendment No. 28 provides that a decision by SIAC whether or not to allow an out of time appeal should not be subject to appeal to the Court of Appeal. Amendment No. 25 provides that the second and subsequent reviews will take place every three months after the previous review has been determined. The first review will continue to be six months after the certificate is issued, or, where applicable, after the appeal against that certificate has been finally determined. Amendment No. 26 is consequential upon Amendment No. 25. I hope that that satisfies noble Lords. As I have said before, the amendments result from the Government listening to what was said in Committee and bringing forward appropriate amendments. I beg to move.
My Lords, we welcome these amendments, which indicate at least a modest degree of flexibility on the part of the Government. They are plainly a step in the right direction.
moved Amendments Nos. 24 to 27:
Page 13, line 13, leave out from Xmust" to end of line 20 and insert Xhold a first review of each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate is issued.
(a) in a case where before the first review would fall to be held in accordance with subsection (1) an appeal under section 25 is commenced (whether or not it is finally determined before that time) or leave to appeal is given under section 25(5)(b), the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined, and
(b) in a case where an application for leave under section 25(5)(b) has been commenced but not determined at the time when the first review would fall to be held in accordance with subsection (1), if leave is granted the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined.".
Page 13, line 22, leave out Xsix" and insert Xthree".
Page 13, line 23, leave out Xa review under subsection (1) or" and insert Xthe first review or a review under".
Page 13, line 26, after X(1)" insert X, (1A)".
On Question, amendments agreed to.
Clause 27 [Appeal and review: supplementary]:
My Lords, in moving Amendment No. 30, I shall speak also to Amendment No. 31. These two amendments are a sort of bonne bouche before one reaches the piece de resistance, which of course is the next judicial review to be taken.
The Government have been at pains, and rightly so, to emphasise the strength and substance of SIAC. I simply endeavour to add a small gloss to that respectability in two ways. The first is set out in Amendment No. 30. I respectfully propose that only members of the commission who have been appointed by the Lord Chancellor—these are the additional words—
Xafter consultation with the Lord Chief Justice", are entitled to sit.
Amendment No. 31 provides that:
XFor the purposes of appeal and review under sections 25 and 26, two of the three members of the Commission must hold or have held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876 . . .".
Under that Act, and relative to this country, high judicial office means, apart from the Lord Chancellor, a judge of the High Court or of the Court of Appeal. At present, that is as it stands. However, under the Act the obligation is that at least one of the members must be of high judicial office. I suggest that, out of the three, because it is emphasised that this commission performs important legal functions—so important that it has all the powers and more of judicial review—two-thirds of those who comprise the commission should be judges.
That is all that there is to my amendments. They are short and simple and I hope that they will be thoroughly acceptable to the Government. I beg to move.
My Lords, I look forward to returning to the last observation of the noble and learned Lord, Lord Donaldson, in, I believe, the next group. I hope that I shall give some comfort to the noble and learned Lord, Lord Ackner, although perhaps not quite in the terms of the amendment that he has tabled.
Amendment No. 30 is to the effect that appointments to SIAC by the Lord Chancellor should be made only after he has consulted the Lord Chief Justice in cases where the members would hear an appeal on, or a review of, a certificate made under Section 21. There are a number of reasons why I am not attracted to that amendment.
First—when tabling the amendment, the noble and learned Lord would not have known that this was the case—this issue had been anticipated by the Lord Chancellor and the Lord Chief Justice, and arrangements have been made to deal with it in a manner which, I am told, satisfies them both. Those arrangements are that all High Court judges currently nominated to hear cases in the administrative court, which deals with XJudicial Review", with a capital Xj" and a capital Xr", will also be appointed to SIAC. That would allow the Lord Chief Justice to call on 25 High Court judges and allocate them to SIAC cases as appropriate. In addition, the Lord Chief Justice and four Lords Justices will be appointed to SIAC.
The question of the allocation of a judge to a case is never a matter for the Lord Chancellor; it is a matter for the Lord Chief Justice. Therefore, I hope that the noble and learned Lord, Lord Ackner, will be satisfied that the effect of the arrangements made between the Lord Chancellor and the Lord Chief Justice are already that the Lord Chief Justice will be in a position to allocate judges to the case and that those who have been nominated to hear SIAC cases are already nominated to hear administrative court cases.
I am not sure whether the noble and learned Lord also had in mind the question of the appointment of the other members—I do not mean under Amendment No. 31 but simply the role of the Lord Chief Justice in relation to other members. I am grateful to the noble and learned Lord for shaking his head as I do not need to deal with the question of whether it would be appropriate for the Lord Chief Justice to be involved in those appointments. I suggest that it is not.
The Special Immigration Appeals Commission Act 1997, which set up SIAC and which already operates in relation to cases with which SIAC deals, does not make it a requirement for SIAC appeals that the Lord Chief Justice should be involved in the way that the noble and learned Lord suggests should be the case in relation to the nomination of judges. What is more—I referred to this matter in Committee—it is possible for two cases to relate to the same individual. They may either come together in SIAC or run side by side. In those circumstances, it would be odd if there were a requirement to consult the Lord Chief Justice on the appointment in one case but not in the other. I hope that the main point will satisfy the noble and learned Lord.
I turn to Amendment No. 31, which relates to the composition of SIAC. Noble Lords will recall that SIAC was established after the European Court of Human Rights, in the Chahal case, held that judicial review and habeas corpus were inadequate remedies to deal with cases where the Secretary of State was making a decision on whether or not someone should be deported from the country on the grounds that it was conducive to the public good; in other words, in effect, contrary to national security. We lost in that case, and I shall need to return to it.
When, therefore, this Government proposed the establishment of SIAC, it came before Parliament, as I read the Second Reading debate in this House, with cross-party support. Schedule 1 to the 1997 Act sets out what the membership of SIAC should be. Paragraph 5 of that schedule states that SIAC will be duly constituted when it consists of three members, of whom at least one holds or has held high judicial office—that is, as the noble and learned Lord says, having been at least a High Court judge—and at least one of whom is or has been appointed as chief adjudicator under Section 57(2) of the Immigration and Asylum Act or is or has been a member of the Immigration Appeal Tribunal, qualified as mentioned in that Act. In other words, a second member must be a legally qualified member who has immigration experience through involvement in the immigration judicial and tribunal structure.
In practice, SIAC cases to date have been heard by a panel consisting of one person from each of those two categories—a High Court judge and an immigration judge—and a third, lay member. On Second Reading of the SIAC Bill, the noble Baroness, Lady Blatch, speaking for the Opposition, said:
XWe welcome the fact that the special immigration appeals commission will have at least one judge sitting on it, and also a member of the Immigration Appeals Tribunal or a special adjudicator. Several practitioners working in the field of immigration law have said to me that, given the increasing complexity of case work, having a specialist tribunal of this kind can only be a good thing".—[Official Report, 5/6/97; col. 737.]
At that stage, a good model was thought to be a High Court judge, a judge with immigration experience and a third person with experience and understanding of security matters, ensuring that the tribunal had the expertise to understand and weigh the evidence.
If the amendment were passed and two of the persons had to be High Court judges, one of the other two categories would not be represented unless we were fortunate enough to find somebody with expertise in both areas. The model has worked well so far and I do not believe that it would be an improvement to substitute for one of the persons with relevant expertise another High Court judge. While recognising the spirit in which the noble and learned Lord moved the amendment, I invite him to withdraw it.
My Lords, I thoroughly accept that the Minister has provided a satisfactory answer to Amendment No. 30 but not to the second. Under the Immigration and Asylum Act 1999, the panel is bound to have at least one chief adjudicator or a member of the SIAC because such expertise is obligatory. When it comes to high judicial office, I say that it is not a case of at least one but that there should be two. Members of the commission will have to consider whether there should be an appeal on a point of law. Under the Bill, they could be outvoted by the layman and the chief adjudicator as it is bound to be a majority decision.
The major part of the case is likely essentially to be a legal one.
My Lords, I refer to the Court of Appeal because the SIAC or the Court of Appeal must give leave for appeal. As matters now stand, an appeal is limited to points of law. On the issue of whether or not there should be an appeal, it is obviously desirable that there is a majority of judicial power. The layman does not seem to feature at all in the proposal. However, this matter is not one on which I wish to divide the House, so I beg leave to withdraw the amendment.
My Lords, I will speak also to Amendment No. 33, on which my argument will be the same.
I reckon that there is much in the Bill that is uncongenial to all of us. The saying that needs must when the devil drives aptly encapsulates our attitude and, to be fair, that of the Government. We know that the devil has been driving. Nothing much more diabolical could possibly be imagined than the events of September 11th nor the character of the threat confronting us, so the Government tell us, here and now.
When the Government say that, we must accept it. We do, but we must also scrutinise extremely carefully what are the needs as the Government describe them. We must do that with special care when the Government, with their disciplined majority, have rushed through the elected House, with scant debate allowed, a measure that permits the Home Secretary to order unlimited detection or indefinite detention without trial. Many say that power resembles internment. We know the arguments but whatever nomenclature one gives it, that is a stern measure indeed.
We must examine also what are the needs to exclude judicial review. When, in Clause 30, the Government seek to exclude the well-established power of senior judges to review in the High Court the way in which the Home Secretary has acted, a complaint of irregularity having been made, our duty is much stronger.
Are those extraordinary exclusions needed? I say Xexclusions" in the plural because Clause 31(2) contains the same exclusion in a clause that channels into the SIAC proceedings that challenge the UK's derogation from Article 5 of the European Convention on Human Rights or the designation under the Human Rights Act 1998 through the 2001 designated derogation order that reflects that derogation.
For the defence of our country, there is no need to exclude constitutional safeguards—especially where the liberty of the individual is at stake. Such exclusion is not among the needs. One has only to recall the words of the Attorney-General on Second Reading. We had an enjoyable midnight hunt in which the Attorney-General had run elusively and with grace—but at length, he came to answer the question that I put to him of why it was necessary to exclude judicial review. After courteously apologising for not answering before, he asked,
Xwhat value will judicial review on top of an existing judicial scrutiny provide? All it will do is add time and delay unnecessarily".—[Official Report, 27/11/01; col. 283.]
His argument was that under the Bill, SIAC will be able to do all that the High Court can do on judicial review. My noble and learned friend Lord Donaldson of Lymington will say something about that later.
Even if it were true that there would be no value in judicial review—and I respectfully suggest it is not true—that would not be sufficient reason to prevent a detainee from seeking to resort to the High Court for so profoundly important a remedy against the abuse of executive power, especially when his liberty was at stake. A detainee should not be obliged to go to a special commission, not a court, set up less than four years ago. It is special indeed—special in its personnel, special in its function, special in its procedures and tasked with a significantly different job.
It is not correct to suggest that judicial review will have no value. For example, how could SIAC review its own activities, on complaint of irregularity? It could not. The noble and learned Lord the Attorney-General relies on the right of appeal to the Court of Appeal, but that is only on a point of law. Conscientious as he always is, he concedes in a letter that he recently sent to my noble friend Lady Buscombe that it is not in the case of every alleged procedural defect that an appeal will lie to the Court of Appeal. In some instances—if there is no judicial review—there will be no remedy. This matter will be dealt with more fully—and certainly with much more authority and experience—by the noble and learned Lord, Lord Donaldson of Lymington, and, no doubt, by others. Time is getting on, so I shall not duplicate the arguments.
I conclude with three reflections. First, while any judicial review is proceeding, the detainee will remain in detention in all but the most exceptional and improbable case—or so I would judge. Secondly, the power of senior judges to review, on complaint of irregularity, whether power conferred by Parliament has been exercised with proper regularity does not undermine the parliamentary will; on the contrary, it supports it. Judges simply tell the decision-maker who has taken a wrong turning where he went wrong procedurally; they will tell him to go back to where he went wrong and to start again.
My third point bears closely on the argument that there would be no point in judicial review and the comment about how excellent and comprehensively sufficient is the statute that set up SIAC. When SIAC was set up, there was no provision in the relevant Bill to exclude judicial review; SIAC has got on all right, and its activities have always been amenable to judicial review. Judicial review was not excluded, but it has never once been sought—we have that from the Home Secretary. The Attorney-General's anticipation of time being wasted and of delay cannot derive from any adverse experience in that regard. In truth, the experience and the record should reassure him.
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.
Clause 30 should be removed, as should Clause 31. I beg to move.
My Lords, we are on Report and the noble and learned Lord, Lord Mayhew, will have an opportunity to respond to that point when he concludes the debate.
My Lords, judicial review is a fundamental defence of the liberty of the subject against the oppressive actions of the executive. Therefore very strong justification indeed is necessary to exclude it.
The most that can be said in this context is that judicial review will not often be necessary. In most cases, it is likely that an application for judicial review will be refused by the court that hears it because that court will decide that an appeal to SIAC about the Home Secretary's decision or an appeal to the Court of Appeal about SIAC's decision is the more appropriate procedure. There will be a few cases—the noble and learned Lord, Lord Donaldson of Lymington, will outline one or two examples—in which judicial review will provide relief that SIAC cannot provide. That is a strong argument for keeping judicial review. I do not believe that there is any serious argument for abolishing it. It is wholly unnecessary to exclude it and, as the noble and learned Lord, Lord Mayhew of Twysden, said, doing so will set a very bad precedent indeed. I strongly support the amendment.
My Lords, it gives me great pleasure to follow my noble and learned friend Lord Mayhew of Twysden and the noble Lord, Lord Goodhart. I am grateful to the noble and learned Lord the Attorney-General for writing to me in response to our concerns, which were expressed at Second Reading and in Committee, regarding the right of appeal on a point of law, and whether that right would include appeals relating to SIAC's procedures.
I quote, with respect, what the noble and learned Lord the Attorney-General confirmed in his letter. He wrote:
XI am satisfied that the Court of Appeal would indeed have jurisdiction to entertain an appeal on a point of law in a case where the Special Immigration Appeals Commission . . . had failed to comply with its own procedural rules".
That is helpful so far as it goes, but the noble and learned Lord went on to say:
XThis is not to say that an appeal will necessarily lie on a point of law in all cases where there has been an alleged procedural defect in the proceedings before SIAC. Whether the way is open to take a case to the Court of Appeal will depend on a range of factors, such as the nature and materiality of the error in question".
The noble and learned Lord the Attorney-General is not therefore minded to accept the amendment to which I spoke in Committee; namely, Amendment No. 124. He would not do so because, in his words,
Xto include express provision to that effect in this Bill would risk casting doubt on the operation of other statutory provisions which provide for an appeal on a point of law".
Her Majesty's Opposition believe that, while the noble and learned Lord the Attorney-General is endeavouring to be helpful, that answer in fact weakens the Government's case for the need to exclude judicial review because of the admission that appeal on a point of law does not work universally.
We are therefore firmly of the view that Clause 30 and Clause 31(2) should be excluded from the Bill, for all of the very cogent reasons that noble Lords have already expressed. To repeat what other noble Lords have said would be otiose. I, too, look forward to the comments of the noble and learned Lord, Lord Donaldson of Lymington.
The proposal to exclude judicial review would set a very dangerous precedent. It is amazing to think that a Labour Government see fit to deny the proper process of law, which can call to account the decisions of the executive. Perhaps, in the scheme of things, and taking into account the debates that we have already had on this part and other parts of the Bill, we should be not surprised but saddened.
My Lords, I hope that noble Lords will forgive me for mentioning that I spent 26 years as a judge in the High Court or the Court of Appeal. During that time, for one reason or another—certainly when I was Master of the Rolls—and in view of the importance that I attached to judicial review, an unusually high proportion of my work was concerned with judicial review.
As a result, I understand the principles that in fact—this is important—guide the judges. For present purposes, they are: first, that the judicial review jurisdiction will not be exercised if SIAC is equally capable of providing a remedy; and, secondly, that the merits of ministerial action are wholly irrelevant. The sole concern of judicial review, for practical purposes, is whether the action that is taken by the Secretary of State is within his authority or, as the case may be, if the action that is taken by SIAC is within its authority.
As the noble Lord, Lord Goodhart, pointed out in an earlier debate, the two jurisdictions—of judicial review and appeal, whether or not that is limited to a point of law—are not mutually exclusive. They are complementary. As the noble Lord, Lord Lester of Herne Hill, attested, in 99 cases out of 100 the judicial review judge stands back and leaves it to the other jurisdiction if the other jurisdiction has the width of jurisdiction to deal with the matter.
I do not know how many judicial review cases I have dealt with. Most will involve local authorities. In judicial review, I have intervened only once where another tribunal had the necessary jurisdiction to deal with the problem. I did so in exceptional circumstances; I mention it to indicate how exceptional. A police officer was disciplined by his chief constable. There was a long period—I forget how long but it was a matter of years—before the police officer was called on to answer the charge. It seemed to me and those sitting with me that on no possible view could the police officer have had a fair hearing. He could have appealed to a police appeals tribunal which would, I hope, have quashed the sentence straight away. If it had not, we would have quashed the appeal tribunal's decision. So the position was absurd. We were going to leave this unfortunate officer in doubt about his future when we could tell with absolute certainty what that future was. Therefore we said, XWe will step in and quash it". It is only in such exceptional circumstances that that can be done. I regard it as a one-off. Regrettably, I am unable to say what my total caseload was so I cannot precisely confirm the description of the noble Lord, Lord Lester, of the 1 per cent risk. The figure must be of that order.
More importantly, I know of no judge who has ever been guided by his view of the merits of ministerial or local authority policy which he has been invited to review. Certainly I never have been. The issue is always: is the action authorised? Nothing else. That said, I understand and sympathise with the dismay of a Minister whose policy decision is quashed. He has no doubt that his policy is in the national interest. He has no doubt been advised that it is within his authority to act as he has done. Were it otherwise he would have looked for another policy. In these circumstances it must seem clear to him that an unelected judge has entered the political arena and disagreed with his policy. That is totally untrue, but I can well understand his reaction. It is not the correct conclusion. It is possible that the Minister's advisers are right. Judges do not claim infallibility. The right remedy then is to appeal. In appropriate circumstances, an appeal can be brought in very quickly.
The problem for Ministers in accepting that an adverse judicial review decision is based upon vires rather than merit has been aggravated by the provisions of the Human Rights Act 1998 which require judges to test the limits of ministerial authority against the provisions of the Act in addition to the words in which the authority is expressed. It follows that what was once adequate authority may cease to be such, although the terms of the authority are unaltered. It may be good or bad but it is the arrival of the Act which produces that curious situation. I judge from press reports—a wrong basis from which to do anything—that the lorry case which is commented upon in the newspapers today is just such an instance. But for the Human Rights Act the judge would have had no difficulty. He thought that he was constrained to reach a different conclusion. The Home Secretary—if it is the Home Secretary—has rightly appealed and it may be that the judge was wrong. I know not.
I have spoken of judicial review in terms which might suggest that it is something invented by judges for the discomfiture of Ministers. Not so. The jurisdiction extends to all public authorities including all tribunals and—it may surprise noble Lords—all county courts. It is a very wide jurisdiction.
I have the greatest respect and admiration for the way in which the noble and learned Lord the Attorney-General is discharging the duties of his high office. However, when he implies that one has to choose between having a wide-ranging system of appeal from decisions of the SIAC and judicial review he is, if I may so with respect, completely mistaken. They are not alternatives. They can very reasonably be complementary to one another. With regard to the Chahal case he says that judicial review was held to be a totally inadequate remedy. So it is by itself, because it is concerned with authority not merits. One needs both. So long as the tradition—it now almost amounts to a rule of law—persists that no permission will be given for judicial review if there is a better remedy, I cannot see any particular problem.
The noble and learned Lord says that the debate has demonstrated that there is not anything that judicial review would add to the SIAC appeal system. With great respect, he is simply wrong. It is highly unlikely that there would ever be a need to invoke judicial review but it would not be open to the SIAC to challenge the conclusiveness of a certificate by a Secretary of State under Clause 30(3). That could be challenged on judicial review if evidence was obtained that the Secretary of State, notwithstanding his certificate, had acted in reliance on some quite different matter.
The noble and learned Lord, Lord Mayhew, has already made the point that if the SIAC strayed and erred from its own authorities, which are wide, it could not judicially review itself, nor could the Court of Appeal. That is the important point. I say that because I have had experience of this. When trying an appeal, it suddenly emerged that there was an underlying judicial review point. We were satisfied that we could not deal with it. So what were we to do? What we did—it caused some hilarity—was to invite counsel to allow two of us to sit back in our chairs and imagine that we were not there, and to apply to the third judge for permission to bring judicial review proceedings. To no one's surprise he granted that. We then moved the newly-formed judicial review proceedings into the Court of Appeal and proceeded with the two together. But we did think that it was necessary.
I know of no case in which on an appeal you can deal with judicial review—with one exception. The noble Lord, Lord Lester, who knows about these matters in great detail, will no doubt remember it. A council tenant was given notice to quit by his landlord local authority. He said that it had no authority to give him notice to quit as a matter of statutory construction. The local authority said, XSo what? Under public law what is done by an authority stands until set aside. It has not been set aside. Therefore, he must be evicted and the appeal must be dismissed". The Court of Appeal—I was not a member of the court—made new law. It said that where under private law someone was defending his rights and for that purpose he had to impugn some action in public law, he could do so. So far as I know, that is the only exception.
I ask myself what other objections can there be to leaving open the bare possibility of judicial review; and it is a bare possibility. That it would produce delay? That is not so. Both the High Court and the Court of Appeal can take action within hours, day or night, given a sufficient degree of urgency.
Perhaps I may illustrate that. I began a hearing in the NIRC at 10 o'clock at night. I threatened counsel that I would sit until they dried up. They said that they would take me on. At four o'clock in the morning I gave in. But it can be done. I just mention another case. A Jehovah's Witness, a youth of 16, objected to a hospital order requiring a blood transfusion. The medical advice was that he could live for only 48 hours in the absence of a transfusion. Mr Justice Ward, as he then was, started the hearing and we were confident that he would order transfusion and that the youth and his parents would appeal. We had a panel standing by to sit all night if necessary. Miraculously, the learned judge, with incredible skill and patience, persuaded the family that to comply with the court order did not disturb their belief. Again, there will be no delay. If there were, the man would be in custody, which does not seem to me to matter a great deal.
Then it is said that there would be leaks from the High Court. That is not so. I conducted the New Cross Building Society appeal totally in camera. Nobody knew that the appeal was taking place. We would not allow the judgment to be disclosed until there had been the opportunity of appeal to the House of Lords. In fact, the case was settled.
Where does this leave us? If the amendment is carried it remains most unlikely that judicial review will ever be sought. If it is rejected, the message will go out loud and clear, not as the noble and learned Attorney—General believes, that judicial review is unnecessary, but that the Government are bent on having the power to operate outside the rule of law.
The Joint Select Committee on Human Rights said in both its reports that it was not persuaded that the conditions for a derogation had been sufficiently explained to Parliament. That is a very important matter. The noble and learned Lord, Lord Steyn, in his recent Holdsworth Lecture, had come to the same conclusion in his extra-judicial capacity.
I mention that because the Government are now in quite serious difficulty for this reason. If a suspected terrorist takes them before the European Court of Human Rights, the starting point will be that the expert Select Committee of both Houses has twice asked Ministers to come to both Houses with sufficient evidence of emergency and of the exigencies of the situation being satisfied. It is in that context that we have to consider these amendments and whether the ouster of judicial review makes sense. The Government will need to defend themselves against criticism for having imposed a scheme of detention without trial and without effective judicial review.
I have said it earlier this evening, but I take the view that the SIAC procedure will in almost all cases provide effective remedies as will the right of appeal on a matter of law to the Court of Appeal. However, I believe that there are two extremely strong reasons for supporting these amendments which have not yet been made. The first is that the Government have not yet introduced all the safeguards that the Select Committee advocated in its reports. Therefore, only a judicial review court might, in extreme circumstances, have to write in one or two of those safeguards.
The second is an international political reason. The Venice Commission for Democracy, on which Professor Jeffrey Jowell QC is the British representative, has the task of spreading democratic ideas under the rule of law across the world. Professor Jowell told me that he would find it extremely difficult to explain in central and eastern Europe how the mother of democracies has ousted judicial review as well as derogating from the convention. He would have to try to explain how the SIAC procedure was sufficient.
It is quite clear from the speeches in this House and the other place that the arguments about SIAC are complicated and are not really persuasive to those who are not expert lawyers. I therefore regard the retention of judicial review as of enormous symbolic value. I believe that sometimes the rule of law requires symbols as well as legal reality. It is for that reason, since judicial review does no harm, that I strongly support these amendments.
My Lords, I am grateful to noble and learned Lords for speaking so eloquently about judicial review. In the view of these Benches these amendments will ease the burdens on SIAC. I am particularly grateful for what the noble Lord, Lord Lester, has just said. The speeches pick up common themes which have run through debates on this Bill in your Lordships' House. They also echo some of the things which were said from these Benches last Thursday about building a proper measure of restraint into this legislation. These amendments have our support.
My Lords, I have listened very carefully to the speeches of the noble and learned Lords, Lord Mayhew and Lord Donaldson. I speak as a mere solicitor whereas they have held very high office.
I believe that the burden rests fairly and squarely on my noble and learned friend who will reply to this debate. At the moment I am persuaded that there is no very good reason for taking the draconian steps that the Government have foreshadowed in this debate. It is with enormous sadness that I say this. I have fought for civil liberties throughout my life as a solicitor and as a member of a very proud profession. I am bound to say that at the moment I see no reason to exclude the remedy of judicial review in the final analysis.
I face this evening with the prospect of voting with the Conservatives and, I suppose, with the Liberal Democrats, against my own Government. I beg my noble and learned friend to sympathise with the problem which I face. It gives me no pleasure at all to note that they are prepared to disregard, as I see it, a very important remedy which, in the final analysis, may be important for the individual. But I would rather stand by the proposition that the Government are wrong than to sully what I have stood for all these years.
When I ask my noble and learned friend to see reason on this point as I see it, I beg him to be as persuasive as he can with his colleagues. We have not yet reached the end of the day. There is still some prospect of change. I hope that the whole House will see that prospect as all important. In my view there is no need to abolish judicial review. As I say, the burden rests very heavily on my noble and learned friend to say that I am absolutely wrong about that. I am not being fanciful; I am being commonsensical. It is important that, when everything is under threat, we should stand firmly by the principles that are all important. My sole concern is with the individual who may be affected. The numbers involved may be few, but some people will be affected by this and they should not be denied the absolute remedy that they seek.
My Lords, I shall detain the House only a merest minute. This is an issue of the greatest importance, complexity and difficulty. I have listened to every word of this debate. The way in which this serious matter has been discussed, including the expertise of so many noble and learned Lords, fully justifies the existence of this House. I was particularly impressed by the speech of the noble and learned Lord, Lord Donaldson, and by the speech of the noble Lord, Lord Clinton-Davis.
I say to the noble and learned Lord the Attorney-General that if this time-honoured, legal remedy is to be done away with in this case, the burden of proof rests firmly upon the Government. Noble Lords have a dilemma because one does not want to give comfort to terrorists, but at the same time we must defend our liberties. Otherwise the terrorists have won. It is really up to the Attorney-General. If he wants the support of those who have open minds on this subject, he must convince your Lordships, including myself, that this is necessary and that there will not be inordinate delays if this remedy were left as it is. That is the crux of the problem.
My Lords, I shall not detain the House for long, but I cannot sit here in silence and not voice my concerns about what I regard as the outrage that this Government seek to perpetrate. Under this Bill some awesome powers are to be given to the Home Secretary. I understand that this Bill is a response to the awful events of 11th September, but as my noble and learned friend has been told by your Lordships, SIAC was not set up for that purpose. When it was set up, the Government did not seek to exclude judicial review following its decisions. In a sense this is a double whammy. The Government propose to give powers to SIAC, which they did not intend to do originally, and under these proposals they seek to withdraw the judicial review route for those who feel offended by the decisions made by SIAC.
At Second Reading the Attorney-General spent a long time—for which your Lordships' House was grateful—arguing two points on judicial review. One was, as the noble and learned Lord, Lord Donaldson, said, that the SIAC procedure was a straight alternative to judicial review. A little later he said that in many respects SIAC was better in these particular circumstances. The noble and learned Lord, Lord Donaldson, has taken leave to disagree with the Attorney-General on that matter.
I put this point to the Attorney-General as a layman and not as a lawyer. If, as he argued, there is not that much difference between the rights of judicial review in these circumstances and the SIAC procedure, perhaps he will listen to the voices from around your Lordships' House on this point and respond by agreeing, even at this late stage, that it would be right to concede that judicial review should be available.
After the outrage of 11th September, the way to defend democracy is not to dismantle it; it is to strengthen it. Otherwise we shall have the ridiculous and ludicrous position of the Mother of Parliaments being asked to put its name to achieving some of the aims of those who carried out the events of 11th September.
My Lords, the prerogative writs of habeas corpus, certiorari and mandamus have a lengthy history which, as my noble friend Lord Russell pointed out in Committee, precede Parliament. They are prerogative writs because the individual is able to utilise the power of the Crown to hold a Minister to account and to supervise the way in which inferior tribunals work.
The Government are happy enough to use the prerogative for themselves. They wage war in the name of the Crown. They use the prerogative over and over again to issue orders and directions. Those ancient writs are the one circumstance in which the individual can use the Crown against the Government and they should be maintained.
My Lords, we have had many debates on this topic. It was debated at Second Reading when I tried to answer the questions posed by noble Lords. I am grateful that noble Lords have acknowledged that. It was also debated in Committee. In normal circumstances, after such extensive airing of the arguments, I would not trouble your Lordships by repeating them, but I have been specifically invited by my noble friend Lord Clinton-Davis and by the noble Lord, Lord St John of Fawsley, to seek to persuade your Lordships why there is still much misunderstanding of what the Government seek to do. I shall take this opportunity to bring together the various points that I have made previously to explain why the Government remain of the view that the provisions in Clauses 30 and 31 are worth their place in this Bill.
This debate started in stark terms. I hope that it will be acknowledged that the debate has moved on. I hope that the noble Lord, Lord Thomas of Gresford, will forgive me for reminding the House that at Second Reading he said that the detainee has no opportunity to challenge the information that has been laid against him. That statement is fundamentally wrong and is critical to understanding the provisions in the Bill. It is not the case that a person who is detained has no avenue of redress.
As this debate concludes, I hope that it will be accepted and recognised overtly by noble Lords that this debate is not about the abolition of judicial review; that it is not about the setting of precedents in relation to other government departments; but that it is about the appropriate judicial review—I do not hesitate to use those words and I shall use them time and again—for such decisions. The appropriate judicial review for these proceedings is the SIAC route.
XJudicial Review", with a capital Xj" and a capital Xr", has a specific meaning in English law. It is a form of scrutiny by judges which, as the noble and learned Lord, Lord Donaldson, to whose experience I bow, has so clearly explained, is not a thorough-going review of the merits of the decision, but a limited form of judicial scrutiny. I want to spend a moment not just on that point, which is one of the reasons why XJudicial Review" with a capital Xj" and a capital Xr" is not the right route, but also on a fundamental point which needs to be understood fully in order to see why SIAC is the right route.
The cases concerned with this part of the Bill deal with a limited but critical category of people. I do not say that they are limited in order to underestimate the importance of what is being done. We are dealing with people who have no right to be in this country and whom the Home Secretary has the right to deport, but for one fact: he and the Government are too concerned about human rights to be prepared to send them back to a place where they may be shot or executed or tortured.
Noble Lords opposite have taken a different view. The party opposite has suggested that we should send these people back to their deaths. That is not something that we are prepared to do.
My Lords, I have absolutely no desire to be disagreeable today. The fact is that at Second Reading the point put forward, which has been made elsewhere by the main opposition party, was that the route the Government should take is not to detain those that we cannot deport, but to get them out of the country by withdrawing from the convention on human rights. Then they would rejoin but exclude Article 3. Article 3 is the obligation that we want to hold on to. It precludes us from sending people to places where they may be killed, executed or subjected to torture. That is not something we are prepared to do. So we are talking about people—
My Lords, we made that point on the understanding that there would be a prescribed list of countries which would be kept by the Home Secretary. I made that very clear at Second Reading.
My Lords, the record is the record and noble Lords can consult it. The fact is that, prescribed list or no, as the noble Baroness suggests, there are people in this country who there are reasonable grounds to believe are a threat to our national security, who are international terrorists, and who have no right to be here; but we will not and cannot deport them because there is no safe place to send them. That is the category of person with whom we are concerned. The question is: what will be the judicial scrutiny of the decision made by the Home Secretary to this limited but still important category of people who fit into that description? I give way to the noble Earl.
My Lords, I am most grateful. Can the noble and learned Lord qualify or reconsider something that he said a moment ago? He said that we are dealing with people who have no right to be in this country. In many cases that may be so. I am aware of Section 33(2) of the UN convention. But since SIAC cannot examine the asylum claim, it cannot judge the proportionality of the certificate.
The noble and learned Lord may have seen in last Sunday's Observer the report of members of the Zimbabwe opposition being returned to Zimbabwe and denied asylum. He may be aware that Mr Mugabe has a somewhat unusual definition of Xterrorists". One would like to be certain that should any of these enter into a certificate they could be checked.
My Lords, the Government have made their position very clear. That goes for those covered by the later clauses in the Bill, which we are not debating with this amendment. There are two points. The first is that the only category of persons to whom the detention powers relate would be those in respect of whom valid deportation orders have been made but we cannot deport them because of a practical problem, or because it would mean sending them back to a country where they would not be safe.
That is true—I say to the noble Earl, Lord Russell—in relation to the later clauses also where certain people, in accordance with the Geneva Convention, are not entitled to asylum status. We will still not send them back if they cannot be sent to a safe place.
My Lords, I have visited that country. That is not the issue today, with respect to the noble Lord, Lord Avebury.
There is already a power in relation to the deportation order, which will continue to exist. But that can be challenged. This provision does not affect that. That power exists. There has to be a deportation order, which is itself subject to judicial scrutiny and appeals. I recognise that there are occasions where someone may say, XGoing back to this place is not safe for me" and the Government take a different view. That is an issue that can be determined by the Immigration Appeal Tribunal or by SIAC.
The problem that arises is that we are dealing with a category of persons who are believed to be international terrorists and a threat to national security. The strong likelihood is that the key evidence which supports that view will be sensitive intelligence information. That is information which has been obtained by undercover sources, by intercept communications and by other covert methods which have been employed in order to protect the security and the people of this country.
The Secretary of State wants to make a decision to grant a certificate on the basis of that evidence. We could take two views in relation to what we then do. We could say, because it is sensitive intelligence information, that we do not want anyone to see it; therefore, we shall not allow anyone to review it and the Secretary of State's decision will stand. That is not the route that the Government have taken. We want that evidence to be reviewed by a judicial body. However, we cannot have it reviewed by the traditional, classic judicial bodies because there is no procedure under which that sensitive security information can be protected.
Why not? The noble and learned Lord, Lord Donaldson of Lymington, referred to a case. Of course there are cases where hearings take place in camera. But they take place in camera—I am sure that the noble and learned Lord will confirm—with the applicant present and able to hear all the evidence.
We are concerned with a situation—I gave the example in Committee and I shall weary your Lordships by repeating it on one further occasion—where this person is suspected of being an international terrorist because of a conversation which took place on, say, 24th June. We know about that because the source was a deep cover intelligence officer masquerading as one of these people. If we say to the applicant, XThe reason that we believe that you are an international terrorist is because on 24th June you said this", that immediately gives the game away. It threatens the life of the source; it compromises our national security; and it prevents that person from continuing to protect each and every one of us against a further threat.
SIAC was invented because our existing XJudicial Review" with a capital Xj" and a capital Xr" is inadequate to deal with that situation. That is why we lost the Chahal case. We cannot show the information to the traditional standard court because that court has no method by which it can examine that information without also revealing it to the individual.
SIAC is a body headed by a judge, a judge who sits in the judicial review court. I have made that point before. This is a judge who is used to, equipped for and experienced in judicial review. There is that judge, another judge experienced in immigration matters and a lay person. One can then say, XWe now have a procedure which can look at this sensitive information. We will give you all this information on which the Secretary of State relies. You can review it all". The judicial review court could not do that. We must protect the position of the applicant. How will his interests be represented? It is important that, from his point of view, the information is challenged where it can be. We cannot tell him that that conversation took place on 24th June, for the reason that I have given. What we can do—this is what the SIAC procedure does—is instruct an experienced barrister, whose job it is to represent the interests of the appellant, to cross-examine the witnesses and to see all the information. In that way, we provide a means by which the sensitive intelligence information can be reviewed judicially.
My Lords, as the noble and learned Lord was kind enough to summon me by name to answer this point, perhaps I may be allowed to do so, despite the rules—with the leave of the House.
The High Court—and the Court of Appeal—has inherent jurisdiction to make any rules that it likes, or, rather, that it thinks necessary, for the purposes of justice. It could therefore adopt the whole of the SIAC rules—and I would expect it to do so. If I had not passed my sell-by date and was still there, I would certainly have arranged for that to happen. That is perfectly open to it. It can go further, if anyone wants it to, but the SIAC rules would be enough for the Attorney-General's purpose.
My Lords, before the noble Lord, Lord Thomas of Gresford, rises, may I tell the noble and learned Lord, Lord Donaldson of Lymington, that I am grateful for his intervention. The body that we would be left with would be the SIAC. The rules would be that there would be a judge, ability to review the information, and opportunity for the appellant's interests to be represented by counsel produced to examine the material. That is fundamental. There would be a special advocate—in the extraordinary situation of a court considering information that one of the parties could not look at, that would have to be done by way of a special advocate. That would be the SIAC.
My Lords, because judicial review could not do what we want it to do. It could not review the very evidence on the basis of which the order is made.
In Chahal, there was an attempt at judicial review. The gentleman concerned had been detained for a period—a long period, as it happens. He had gone for judicial review, but the judicial review court—I hope that I am correct; the noble Lord, Lord Lester of Herne Hill, will correct me if I am wrong—said the following. XWe cannot look at the information on the basis of which the Secretary of State has formed the view that you are a security risk. Therefore we have to decline judicial review." The European Court of Human Rights judgment said that,
Xthe availability of judicial review and habeas corpus to review the decision to detain Mr Chahal before the domestic courts did not satisfy the requirements of the European Commission on Human Rights", because it did not provide a fair trial.
My Lords, I hope that the noble Lord will permit me to reach that point, because I should like first to finish what I was saying on my first point. Despite what was said in Committee, it is still being suggested—unfairly, I respectfully submit—that what is being proposed by having the SIAC review in some way prevents judicial review of the Secretary of State's decision.
Despite what some noble and learned Lords have said, I stand absolutely unrepentant. Let me summarise the ways in which SIAC provides concrete advantages that judicial review cannot. First, it can have access to all the information that the Secretary of State has; judicial review cannot. There is the special advocate arrangement, under which that evidence can be tested in the interests of the detainee. That is a critical safeguard—as I hope that noble Lords will agree—that the judicial review route does not provide.
Secondly, the SIAC will be able to take account of information that comes to light after the Secretary of State issues his certificate. As the noble and learned Lord, Lord Donaldson of Lymington, said, judicial review is not concerned with the merits; it is concerned with the authorisation at the time the decision was made. The Bill is clear. The SIAC will be not only asked but required to consider material at the date of the hearing. Judicial review does not do that.
Thirdly, the SIAC contains a range of expertise—specialist immigration and security information—that a judicial review tribunal would not normally have. It will have a High Court judge.
I am coming to that second point. The first point is that it is so unfair to criticise the Government for proposing detention without trial and for not allowing judicial review and scrutiny when what we want is a procedure introduced precisely to deal with the problem that will enable a full review of the information.
What is it that that judicial review would add? Let it be accepted—I hope that it is throughout the House—that SIAC will be a much better method of reviewing such decisions than ever would be XJudicial Review", with a capital Xj" and a capital Xr". As I say, your Lordships do not have to take our word for that; that is what the European Court of Human Rights said. As the noble Lord, Lord Lester of Herne Hill, said, the SIAC procedure was introduced because it was argued for in the Chahal case by Amnesty, the AIRE Centre and the Joint Council for the Welfare of Immigrants. It has subsequently been referred to with approval by the ECHR. In what circumstances would judicial review apply where SIAC does not?
One point that has been raised today with which I want to deal immediately concerns the letter that I sent to the noble Baroness, Lady Buscombe, following her request. I am grateful that she acknowledged that my letter was intended to be helpful. She had raised the question: will there be an appeal to the Court of Appeal on a point of law where there is a procedural irregularity? First, I said that in my view, the better view was that there would. She asked for clarification; I confirmed, unequivocally:
XI am satisfied that the Court of Appeal would indeed have jurisdiction to entertain an appeal on a point of law in a case where the Special Immigration Appeals Commission had failed to comply with its own procedural rules".
That is what happens with employment tribunals, for example. There is only an appeal on a point of law to the employment appeal tribunal, but if there is a procedural irregularity, that can be a point of law that gives an appeal. I went on to say, and in the light of the debate that then took place perhaps I should have thought more carefully about one of my words:
XThis is not to say that an appeal will necessarily lie on a point of law in all cases where there has been an alleged procedural defect in the proceedings before SIAC. Whether the way is open to take a case will depend on a range of factors, such as the nature and materiality of the error in question".
I intended by that to say, simply, that there will be cases of procedural irregularities that are so immaterial that no appeal would be granted. Rather than say that no appeal will lie on a point of law, what I meant and should have said was that no appeal will succeed on a point of law. That is all that I meant, and I hope that that clarification helps the noble Baroness.
Every noble Lord who has spoken has said that in 99 cases out of 100, SIAC would be involved. I suggest that no realistic example has been given of a case where judicial review would add something that SIAC does not have.
Perhaps I may remind noble Lords of two points. First, there is an appeal from the SIAC to the Court of Appeal. It is on a point of law, but it is an important appeal. And of course there is an appeal from the Court of Appeal to the Judicial Committee of this House. In those circumstances, is it appropriate that there should be a judicial review of the SIAC? Would it not make more sense that if there were to be another judge looking at what the SIAC did, if that was the point, it was not a judge of the same level—that is, another High Court judge—but the Court of Appeal? That safeguard exists.
Secondly, the noble and learned Lord, Lord Donaldson, referred to Clause 30(3). That is the only example put forward by noble Lords in which there might be a judicial review where SIAC would not apply. It provides that:
The absence of judicial review in relation to that does not create a problem because if the Secretary of State issues a certificate under Section 21—and that is the key to these powers—it is subject to review by the SIAC. If the SIAC cancels the certificate, the Secretary of State can do no more. He cannot move on to Sections 22 and 23. Therefore, the key point is the certificate which is issued by the Secretary of State. It is the reasonable belief that the person is a threat to national security—a reasonable suspicion that that person is an international terrorist—and that is subject to the SIAC review. The action or the deportation order is subject to appeal under the existing immigration law.
My Lords, will the noble and learned Lord explain why, if the system of SIAC is so comprehensive and able to deal with everything and if a judicial review will not in practice lie or ever be used, it is necessary to remove what is a hallowed procedure and is part of our constitution? Is it just tidy-mindedness or is there some other motive behind it? What is sauce for the goose is sauce for the gander. If there is no point in judicial review, why is there any point in removing judicial review?
My Lords, I shall answer the noble Lord's question, but this Government have introduced something which the previous Conservative government did not; that is, a procedure, SIAC, under which a review of the evidence can take place. There are many examples of specialist courts where the view has been taken that that is the route by which certain matters should be dealt with.
I mentioned on a previous occasion the Bill of Rights, the British Nationality Act and the RIPA, but I could have mentioned the Supreme Court Act 1981. That provides in Section 28 that certain decisions of the Crown Court are not subject to judicial review. The procedure is not such an unusual event; this is not an abolition of judicial review. It is a recognition that judicial review and habeas corpus provisions do not provide an adequate remedy. I say with all respect to the noble and learned Lord, Lord Mayhew, that the procedure is not a precedent for other departments because it does not take away judicial review of executive decision. It puts in place a different judicial scrutiny mechanism.
The inclusion of judicial review as well would merely create confusion about the routes of challenge which are available and cause delay and unnecessary expense. I would ask noble Lords to bear in mind the following. It is often said that one cannot put a price tag on justice, but one cannot use that philosophy to justify the unproductive use of people's time which does not promote justice in any way. The opportunity cost principle applies to all walks of life, including the law. And if the lawyers and the courts are tied up in unnecessary judicial review applications, they cannot be doing other things which are more beneficial to the cause of justice.
I am as firm a supporter of judicial review as other Members of this House.
My Lords, I am sorry that noble Lords find that an amusing remark because it was not intended to be. It was intended to be a plain statement of the fact. The support stems from the benefit which judicial review provides in overseeing the actions of public officials. I fully accept that in many areas judicial review has a vital role to play. I would not disagree in any way whatever with the noble Lords who have spoken about that. But where there is an area in which judicial oversight—judicial review with a small Xj" and a small Xr"—can be better provided, with more safeguards to the other party, the detainee, I say that that is a better and more logical route to go down.
The Government have produced an alternative which is a strong and robust route for judicial scrutiny. It was promoted by organisations which have an interest in the safeguards for individuals. It was encouraged by the European Court of Human Rights and it derives from the Canadian model which was before that court. I note with considerable interest—and I invite noble Lords to consider this—that although the Joint Committee on Human Rights, for which I have great respect, produced two reports in which it made several criticisms of the Government—I do not say that I accept them for a moment—it has not included the criticism that the SIAC route is inappropriate. Quite the contrary. As I read the report, it accepts that the SIAC route is appropriate.
The only point that is left is the symbol. If noble Lords would recognise, as I earnestly urge them to do, that the SIAC route is judicial review—it is strong and robust judicial scrutiny—no bad symbol is being sent out at all. There is a symbol that we want the Secretary of State's decision to be fully reviewed by a judicial body which is able to consider the evidence and all the evidence. For those reasons, I invite noble Lords not to press their opposition to the clause standing part.
Perhaps I may say briefly that Amendment No. 33 deals with the derogation issue. I should have dealt with that matter earlier. In order for any court to determine whether or not the derogation is appropriate, it will be necessary for that court to see and consider the intelligence information which is in the possession of the Government indicating what is the public emergency. Only the SIAC will be in a position to do that and that is why it is the appropriate court also to consider that issue.
My Lords, I am grateful to all noble Lords who have spoken on these two amendments. I am especially grateful to the Attorney-General for the care and patience with which he has dealt with the debate.
I am afraid that when I first read Clause 30 I said to myself, XAh, here is an example of putting in something which really cannot be defended and in due course it will be conceded. That will help the passage of the Bill". However, that has not happened.
The arguments are well and clearly exposed before the House. As was said by the noble and learned Lord, Lord Donaldson, regarding the sensitivity of information, it is perfectly possible for rules to be made which will provide the same protection to sensitive intelligence information as applies at the moment in the SIAC.
The problem facing the Attorney-General has been this—
My Lords, will the noble and learned Lord give way? The noble and learned Lord, Lord Donaldson, said that one could exclude the applicant. Could one also refuse to allow him to have counsel of his choice because one thought that the counsel of his choice was inappropriate and would himself leak the information?
My Lords, I do not enter into the merits. All I say is that the mechanism is available. The trouble that the Attorney faced was that the more he laboured with great skill to show the perfection of the SIAC procedure the harder it was to explain why so many people would apparently go down the other route that it would be a waste of time, resources and everything else. I believe that the issues are clearly before noble Lords and I invite the House to express its opinion.