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Noble Lords: Hear, hear!

Lord Williams of Mostyn: My Lords, he, too, with his invariable courtesy, has indicated that he wishes to raise one or two matters today.

The Bill is a necessary measure and one which will provide additional safeguards in immigration cases which raise national security considerations. We seek to balance the need to ensure that decisions are properly reviewed and the need to ensure that information is not disclosed contrary to the public interest. Taken together we believe that the measures briefly described will accommodate the legitimate concerns we have about the nature and sources of intelligence information and give the individual appellant a substantial degree of procedural justice. These are difficult issues, but I hope that the House will agree that we have got the balance broadly right. I commend the Bill to your Lordships.

Moved, That the Bill be now read a second time.--(Lord Williams of Mostyn.)

5.5 p.m.

Baroness Blatch: My Lords, the Bill before us today, which will establish a special immigration appeals commission, will have our support. Indeed, as a response to the judgment in the Chahal case, we would have sought an earlier legislative opportunity to respond along the lines set out in the Bill. As the noble Lord

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said, the Bill establishes a commission giving a right of appeal to those liable to be deported on the grounds of national security. At present, they do not have such a right under the Immigration Act 1971. The Bill will ensure full compliance with the judgment last November of the European Court of Human Rights.

As I said previously from the other Dispatch Box, the United Kingdom has a proud record of honouring its international obligations and commitments. But on the issue of national interest and national security, it is our guiding belief that a balance must be struck between the needs of natural justice and the needs of national security. I hope that the Bill will help to achieve that balance. Indeed, it was referred to by the Minister.

Before moving to the specifics of the Bill, I wish to make a point about national security. As I am sure the House will agree, the Chahal case raised several important points in this area. My noble friends on this side of the House have always strongly supported the European Convention on Human Rights and always complied with its judgments when we were in Government. However, the court has made a number of controversial rulings against the United Kingdom which strike at the heart of our ability as a nation to take action to uphold our national security against the pernicious threat from terrorism. But it is essential for the effective operation of the Court of Human Rights that due weight in judgments is given to the margin of appreciation so that states determine their own laws and practices, except where these are clearly contrary to the convention. Nation states must be allowed to uphold the public good of their citizens and to maintain effective national security.

I turn to the specifics of the Bill. We 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.

However, it is not clear whether the commission will be a court of record and, as currently drafted, there are no provisions in the Bill for the decisions taken by the commission to be binding on the Home Secretary. Perhaps in reply the Minister will confirm whether that is the intention.

We would also press the Government to say clearly whether they have any plans at this stage or in the future to extend the remit of the special commission beyond that which the Bill will give it; namely, to provide a right of appeal only to those individuals who currently do not have one. I know that such clarification would be very helpful to practitioners and adjudicators alike.

Clause 4 of the Bill gives the Lord Chancellor the power to set the rules regulating appeals to the commission. Given the importance that these rules will have on the functioning of the commission, we on this side would press the Government to publish the draft rules, preferably before the Committee stage. However, I was delighted to hear the Minister say that we would see a published draft of the rules under Clause 4 before

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the Bill completes its passage through Parliament. I understand that we will have them before the Committee stage and I am grateful. It is important that the House is able to give full and effective consideration of the Bill, and the rules which will be set out by the Lord Chancellor will be material to that consideration.

We believe that the Bill is right not to extend legal aid to cases going before the special commission. Voluntary organisations such as the Immigration Advisory Service and the Refugee Legal Centre which currently offer advice and assistance are fully able to deal with such cases. We also do not wish to see vast quantities of taxpayers' money spent controversially on individuals whom the Home Secretary is trying to deport from the UK on the grounds that they pose a threat to national security and the public good.

I also note with amazement the financial effects of the Bill. As I understand it, the annual cost as set out in the Bill is assumed to be no more than £1,500. Even though it is intended to pay a daily rate of attendance for only one member--and I am not sure that that is actually correct; but that is the intention stated on the front of the legislation--is it really the case that no payment whatever, or even expenses, will be given to other members of the commission, especially in the light of Schedule 1, paragraph 3, which refers to "payments to members"? Referring also to the other rather mean sum of money mentioned on the front of the Bill--namely, the £1,000 for the counsel who will be appointed by the commission--can the Minister say how many days work is assumed by that calculation and what daily rate would be paid?

The decision of the European Court of Human Rights in Chahal demonstrated Article 3's absolute nature. On the basis of the Government's plan to incorporate the European Convention on Human Rights into British law (Article 3 of which expressly rules out signatory countries from returning people to countries where there is a serious risk of their being tortured) can the Minister explain, first, how incorporation of the convention would affect our ability to deport on national security grounds; secondly, what effect the Government consider incorporation would have on the provisions of the Bill; and, thirdly, how that would relate to and, indeed, work with the recent British initiative--adopted last December as a UN declaration--denying the protection of the 1951 refugee convention to terrorists?

Is there not a danger of wholesale muddle here, hindering the United Kingdom's ability to take effective action to uphold the national interest? I urge the Government to clarify the issue and to look carefully at the detailed implications of what appears to be a conflict which could impact on this country's ability to protect the national security interest. As I said at the outset, we do support the Bill but would find it most helpful to have clarification of some of the points that I have raised.

5.12 p.m.

Lord Lester of Herne Hill: My Lords, it is a great pleasure to be able to congratulate the noble Lord, Lord Williams of Mostyn, on his appointment. He is a

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well-respected and well-liked colleague at the Bar and will be greatly missed in the courts. Indeed, he has made a personal sacrifice in accepting the appointment and I wish him a happy and fulfilled period in public office in a great department of state in which I once very much enjoyed serving in a more minor capacity. I should, I suppose, mention that my wife is a special adjudicator, though I doubt whether that is a matter on which I need to declare a personal interest however interested I am in her work.

A quarter of a century ago, Professor Bob Hepple observed in a learned article in the Modern Law Review on "Aliens and Administrative Justice: the Dutschke Case" that, as Mr. Dutschke sailed away from Britain in the "Winston Churchill",

    "more than a few liberal consciences must have been aroused at this reminder of the demise of the rule of law which once protected Kropotkin and others such as Kossuth, Mazzini, Bakunin, Lenin, Marx, Engels and Sun Yat Sen, all of whom engaged in lawful political activities in this country".

The present Bill is a necessary measure and is welcome to the extent that it seeks to introduce a better system of administrative justice in the area than was evident in the Dutschke case and to the extent that it gives effect to European human rights law. A purist would argue that the system is defective in the Bill in not ensuring the full panoply of natural justice in this difficult area, but I agree with the Government and with the noble Baroness that it is compatible with the rule of law to adopt a special procedure enabling the proposed appeals commission fairly to determine appeals in these exceptional cases without prejudicing the interests of justice or of national security and to do so by means of a special procedure. Lest I forget, perhaps I may just say that I do not agree with the noble Baroness if she was implying that Chahal involved the European court in excessive intervention in our system or, indeed, that there is any threat posed by that case to the security of this nation.

However, having welcomed the Bill in general from these Benches, I have to say that it is an incomplete measure and is defective both in design and execution in ways that I shall try to explain simply. As the noble Baroness indicated, the Bill was conceived by the previous Administration and, if I may say so respectfully, it bears all those hallmarks. It involves only incomplete compliance with the requirements of European human rights law. It is unfortunate that the first Home Office measure of this brave new reforming Government should have been introduced with such haste and with no time for proper consultation with people who are much more expert than I am. Nevertheless, I hope and believe that the Government will be responsive to constructive criticism and to amendments to improve the Bill in Committee.

I am most grateful to the Minister for having discussed the Bill with me in advance of today's debate. I have given him notice of my main concerns and I hope that he will be able to meet at least some of them in his reply and later in the Bill's proceedings. As the Minister said, the Bill is intended to give effect to the judgment of the European court in Chahal. The main defect in the

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design of the Bill is that it fails to give effect to the judgment in one important respect and will, therefore, have to be followed by further amending legislation of the corpus of immigration law. I shall return to that aspect a little later.

There are three central questions which need to be considered at this stage. First, will the Bill, and any other measures that the Government introduce, sufficiently ensure that the prohibition against torture or inhuman treatment guaranteed by international human rights codes (by which the UK is bound) is adequately safeguarded? I have in mind Article 3 of the European convention. Indeed, that question has already been asked by the noble Baroness, Lady Blatch.

Secondly, will the commission's jurisdiction capture all the situations which need to be covered by means of this new right of appeal? Thirdly, are the powers and duties of the commission sufficient to ensure a fair procedure? As the Minister indicated, one central finding of the European court in Chahal was that there was no effective remedy under English law, whether by way of judicial review or otherwise, in cases where individuals seeking to come to this country face deportation or extradition to another country in which they are likely to face the real risk of torture or inhuman treatment in breach of Article 3.

The European court pointed out that in such cases it was irrelevant whether the individual concerned was considered to be a national security risk because the overriding requirement was to ensure protection against Article 3 torture risks. This means that there must be effective judicial review, whether by the ordinary courts, by adjudicators or by some special review body such as the commission, to ensure that Article 3 is really complied with.

More recently in the French case of H.L.R., decided on 29th April, the court reiterated that where the expulsion of an alien to a foreign country gives rise to a real risk of being subjected to ill treatment contrary to Article 3, there is an obligation not to deport the alien. It has reaffirmed that Article 3 prohibits in absolute terms torture or inhuman treatment--I emphasise the following words--irrespective of the victim's conduct.

At present the special immigration adjudicators are not empowered to take account of Article 3 risks except in hearing appeals under Section 8 of the 1993 Act in relation to the Geneva Refugee Convention. When they are doing that they have to decide whether there is a well founded fear that an asylum seeker will, if returned, be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. To that extent they can have regard to Article 3 risks, but not otherwise. Suppose, for example, that an ordinary asylum seeker, not a suspected terrorist, faces a real risk of ill treatment in breach of Article 3 on some other ground not covered by the Geneva Convention. The special adjudicator has no power to take Article 3 into account. That is the first example of a gap between this Bill and the requirements of the convention which needs to be filled.

Similarly, when the Crown Court exercises its power to recommend that an offender be deported, the Crown Court is not entitled to have regard to the political

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system in the country to which the offender may be deported. The Court of Appeal, Criminal Division, made it clear in Nazari that the courts in this country are not concerned with the political systems operating in other countries. Lord Justice Lawton said it was exclusively for the Home Secretary to decide in each case whether an offender's return to his country of origin would have consequences which would make his compulsory return unduly harsh.

In other words, the present law does not empower the criminal courts, in exercising their power to recommend deportations, to have regard to the risk that the deportee will face torture, or inhuman treatment in the country to which he will be deported. They cannot take into account Article 3 and the Bill does not seek to fill that gap.

I turn now to the third kind of court, the judicial review court. That, too, is precluded from treating the prohibition of torture and inhuman treatment in Article 3 as absolute in nature, when reviewing decisions by the Home Secretary or, for that matter, decisions of the criminal courts or the Immigration Appeal Tribunal. That was partly the vice that constituted a breach of the right to an effective remedy under Article 13 read with Article 3 in Chahal. Once again the present Bill is incomplete. It does not seek to fill the gap, except in cases where a right of appeal has hitherto been excluded because the Home Secretary has certified that a person's exclusion etc. was conducive to the public good.

I doubt whether the restrictive language of the Long Title of the Bill will enable it to be amended to deal with these gaps. But I hope the Minister will be able to assure the House that the Government intend at an early stage to introduce another amending Bill to deal with them, incorporating the Article 3 requirements specifically into the immigration statutes. That seems, with respect, to be a better method than relying upon the general incorporation of the convention.

As regards the requirements of the other system of European law, the Community law system, the Minister has referred to the pending case of ex parte Mann Singh Shingara and Abbas Radiom which makes quite clear that there must be merits review, including proportionality, to satisfy the requirements of Community law. There can only be effective protection to the extent to which the legal remedy allows full review of the administrative act in question. I should be grateful if the Minister could indicate in his reply whether the Government intend the present Bill to give effect to Community law as interpreted in that way in the present case. In my view it is essential that the notion of a proper review in terms of Clause 4(6) of the Bill means a full merits review.

As regards the question whether the Bill captures all the situations where a right of appeal is called for, it seems--I am not an expert and I get a headache when I try to check the chapter and verse of this--that the following cases which should be covered are at present excluded from the Bill. I have given the Minister notice of this, but I should not be surprised if more time were needed to check each of these examples. I shall briefly say what they are. It seems that refusals to revoke

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deportation orders in non-asylum cases; curtailment of leave cases; refusals of leave to enter and refusals of entry clearance in cases involving other than EEA nationals, are all outside the scope of the Bill at the moment but should be within it.

There also seem to be significant gaps in the bail provisions. These arise because of the differences of terminology in different provisions. For instance, the bail provisions cover only cases of national security. They do not provide for those whose exclusion is on weaker grounds and who therefore have a greater likelihood of being granted bail. The bail provisions leave out exclusion on grounds of the public good and in the interests of relations between the UK and another country, or for reasons of a political nature. There also seems to be a need to be included in the Bill a reference to Section 19 of the 1971 Immigration Act such as is contained in the 1993 asylum and immigration Act. That is because without that reference it is unclear what powers the appeals commission will have and the grounds on which it may allow or dismiss appeals.

I turn to procedural fairness. As the Bill does not seek to extend the jurisdiction of the judicial review court to examine the merits of cases involving the exclusion of individuals on non-conducive to public good grounds, it is all the more important to ensure that the procedural safeguards contemplated by the Bill for statutory appeals will comply with the requirements of European law.

Under the law as it stands, English courts cannot review the evidence on which the Home Secretary decides that someone like Mr. Chahal and his deportation would be conducive to the public good for reasons of national security. It is vital that the special appeals commission should be able to ensure in deciding an appeal both that the decision is proportionate and that the deportation or extradition of someone like Chahal will not expose him to Article 3 risks. I should be grateful if the Minister could indicate in his reply whether that is envisaged.

As the Minister has indicated, the Bill is to some extent modelled on Canadian immigration law, as suggested not I think by the court but by Justice, Liberty, the Aire Center and the JCWI in their amicus brief to the European Court. If we are to match the Canadian immigration law provisions it is important to ensure not only the right to legal representation in Clause 2 but also the right to a summary of the grounds on which a notice to deport is based, a right to give evidence and to cross-examine witnesses, the circumstances in which the commission may decide to hear evidence in the absence of the appellant, and his or her legal representative, and in such a case a right to have the case against the appellant tested by a court-appointed counsel.

We need to ensure the right to receive a summary of the evidence heard in the appellant's absence and the right to comment upon it; a power in the commission to compel the production of evidence and information and to call for witnesses, and the power to decide which information should be disclosed to the appellant. My next point was referred to by the noble Baroness;

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namely, the right to make a binding decision. Further, I refer to the need for the commission to publish its decision with reasons. We greatly welcome the affirmative procedure that is contemplated and the fact that the draft rules will be available before the Committee stage so that we can see whether they meet these requirements.

A small technical error has been drawn to my attention in Schedule 1 to the Bill. Paragraph 5(b)(i) provides that,

    "The Commission shall be deemed to be duly constituted if it consists of three members",

    "a member of the Immigration Appeal Tribunal qualified as mentioned in paragraph 7 of Schedule 5 to the Immigration Act 1971".
It should surely say instead,

    "designated under section 8(5) of the Asylum and Immigration Appeals Act 1993 and section 3(3) of the Asylum and Immigration Act 1996".
That is a purely technical point which no doubt can be considered further when the Bill is in Committee.

Like the noble Baroness, Lady Blatch, I am puzzled by the Government's estimate of the financial implications. Indeed, I have two Questions for Written Answer. I very much hope that they may be answered today rather than in writing. First, what is the Government's estimate of the number of days each year that the proposed commission will sit to determine appeals? Secondly, what is the Government's estimate of the daily fee for counsel to be appointed by the commission?

I know that lawyers are an unpopular profession. I know that the general view is that barristers and solicitors are vastly overpaid. But I note that it is estimated that it will cost only £1,000 per year for counsel appointed by the commission in some or all of the cases heard each year. I would hope that the Government will consider using the Treasury panel, which will be security cleared, as counsel to act independently of the excluded appellant. I know that if one undertakes Treasury work, white tape work, it is almost a breach of Article 4 of the convention--a case of enforced labour or involuntary servitude without pay. I suggest that £1,000 to cover all the costs of counsel for a year's work must be a misprint. I look forward to hearing from the Minister that the figure should be £10,000 or even higher.

5.32 p.m.

Lord Mishcon: My Lords, when I ventured to put down my name to speak today it was because I wanted to thank the Minister for the Bill and for the speed with which it has been brought before your Lordships, and to say what I believe every Member of this House would want to say: what a delight it is to see my noble friend occupying this very important position in the Home Office where one can be sure that the light of humanity will certainly shine through the windows of that great department. When I decided to say that, I had

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no idea that the Minister would say some kind things about me. I wish him to know that they are much appreciated.

The noble Lord, Lord Lester, said that the noble Lord the Minister will be missed by the Bar. Perhaps I may merely say that he will be missed equally by the superior branch of the profession to which I have the privilege to belong.

That brings me to the half witty intervention of the noble Lord, Lord Lester, and the very serious comment made by the noble Baroness, Lady Blatch, referring to the estimate in the financial memorandum of counsels' fees for one year of £1,000. I merely ask the Minister outside this Chamber, and in complete confidence, to tell me to which chambers I should apply where such reasonable charges will be made. I wish to take advantage of that professionally and I want to say that frankly to the House.

The Bill is a good measure. It has been the anxiety of the Law Society and those associations which look after the situation of immigrants and those who may be expelled from our shores that there is no right of appeal. The commission is now being set up and there is no doubt that that is a proper thing to do. Doubt was expressed by those who have been watching for the legislation to come before Parliament as to whether Section 19 of the Immigration Act will confirm the duty of the Secretary of State to accept the decision of the commission. The noble Lord, Lord Lester, referred to that point. That may have been left out inadvertently. It may be that it is deliberate. If it is deliberate, I think that the House will wish to comment on that at a future stage of the Bill.

It is also right that consideration should be given, and I believe a word of praise uttered, on the right of the commission to grant bail. That has not been mentioned. So often we have heard cases where detention has operated most harshly upon those who are looked at by the Home Office with some amount of suspicion, those who wish to enter our shores and for some reason or other are not permitted to do so by the immigration officials. This right of bail granted under the Bill is a matter of great importance and of great advantage.

The lot of a Minister is a hard one. I say immediately that it is not one of which I have personal experience. Nevertheless I have watched. If a Bill is introduced with some amount of speed after a government come into office because, for example, it is necessary, as in this case, to obey the Convention on Human Rights as set out by the Court of Human Rights, people of even the repute and kindliness of the noble Lord, Lord Lester, immediately say that there has not been enough time for consultation. If the matter is delayed then people say to the Minister, "You should have done all this before". From these Benches, I wish to congratulate the Minister on having dealt with this important matter as speedily as he has done; and I am sure that the House will grant the Bill a Second Reading.

5.38 p.m.

Lord Hylton: My Lords, I apologise for putting my name down late. I realise that the Bill is tightly drawn

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and limited in scope, and arises at least in part out of certain individual cases. Nevertheless, I trust that I may be granted a little latitude to make two points concerning asylum seekers and the use of detention.

First, I thank the right honourable gentleman the Home Secretary for his clear statement of the present Government's policy in a letter dated 12th March addressed to Charter 87, a movement as regards which I was one of the original signatories. The letter was positive, in particular about treating asylum seekers with respect and not leaving them destitute. However, there remains some uncertainty about policy on detaining a minority of asylum seekers, although I welcome Her Majesty's Government's intention not to use prisons for this purpose.

Will the Government reappraise the use of detention except for those who face deportation under existing immigration law? Will the Minister say now that asylum seekers will not be put into detention on mere suspicion, bearing in mind that they have sometimes escaped persecution and death only by using forged or irregular documents?

During debate on the previous asylum Bill I moved amendments dealing with the use of non-governmental organisations and of bail in some circumstances as alternatives to detention in borderline asylum applications. Will the Government please consider these points in the course of their reappraisal?

5.41 p.m.

Lord Thomas of Gresford: My Lords, I join in congratulating the noble Lord, Lord Williams of Mostyn, on his elevation to the Government Front Bench. He has been a long-time colleague and adversary. His appointment gave particular pleasure to the Wales and Chester circuit, of which he was once leader and of which we are both members. I hope that he and I will continue, as we have in the past, to obey the precept which is set in the stained-glass window of Chester Crown Court: strive mightily but eat and drink as friends.

In the Chahal case, the European Court of Human Rights considered the provisions of Article 5.4 of the convention:

    "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
Exception was taken earlier today to the decision of the European Court which the noble Baroness, Lady Blatch, regarded as possibly an unwarranted interference in the national security of this country. May I remind the noble Baroness and those who feel that way that the principle was drafted by English lawyers who sought to express what they believed to be the common law principles that lie behind English common law--habeas corpus--and to set out the concepts of natural justice as we know them.

The position under the 1971 Act was unsatisfactory. Mr. Chahal had not been brought to justice speedily; he had been detained for six years because successive Home Secretaries had maintained that he could not

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safely be released for reasons of security. The Court held that there was no effective judicial control over the executive in cases of this sort. The European Court held that the domestic courts of this country did not have access to the national security evidence against him. Indeed, in earlier proceedings in the Divisional Court Lord Justice Staughton, who considered the matter on judicial review, said in his judgment:

    "All [the allegations against him] are denied by Mr. Chahal. We cannot determine whether the Secretary of State was right, after considering the report of the advisory panel, to reach these conclusions. Nor can we review the evidence. We have to accept that the evidence justified [the decision]".
Hence he concluded that it was,

    "impossible to say that this decision of the Secretary of State that the deportation of Mr. Chahal would be conducive to the public good for reasons of national security was irrational, perverse or based on any misdirection".

The position under the 1971 Act was that the court was not given the information by which to consider whether the decision of the executive was a correct one. Hence it is not surprising that the European Court of Human Rights concluded that Mr. Chahal did not have sufficient procedural safeguards to meet the standards set out in Article 5.4.

It is in the light of that judgment that the Bill has to be considered. Does it provide a measure of procedural justice? The meat of the matter is not in the Bill itself; it is to be contained in the rules to be made by the Lord Chancellor. Let us consider the Bill's structure. Clause 1 sets up the commission. I agree with noble Lords regarding the cost set out in the explanatory memorandum. I personally took it to be a misprint and that at least two noughts had been missed out on both the sums mentioned. Clause 2 sets out the jurisdiction. Clause 3 gives a waive to the possibilities of bail; although Mr. Chahal's experience, even after his application to the European Court had been declared admissible, does not give rise to any confidence that bail will be granted in this type of case. I noted the welcome given by the noble Lord, Lord Mishcon, to the bail provisions. I shall be interested to see how often they are actually applied.

Everything else is supplementary. The opportunity is lost to set out in the primary legislation the approach of the commission to an appeal brought before it. I follow my noble friend Lord Lester in asking what are the grounds on which the commission may allow or dismiss the appeals that it considers. From the remarks of the noble Lord, Lord Williams, today, I assume that it is not simply to advise the Home Secretary as the advisory panel chaired by the noble and learned Lord, Lord Berwick, used to do. The problem with that panel was that the evidence it received was never disclosed. There was no legal representation, and no information was given to an appellant as to the advice the panel provided to the Home Secretary, and in any event the Home Secretary was not obliged to follow the advice of the panel. It was highly unsatisfactory. It would be helpful if the Bill set out how the commission is to decide the appeals that it has before it.

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I assume also that the commission is not to review the decision of the Home Secretary to determine whether it is irrational, perverse or procedurally flawed, as in a judicial review.

The Minister said that the commission is to have the power of decision. It is to carry out the balancing exercise between, for example, the threat of torture or threat to life or freedom of the appellant by return to his own country against the risk to the national security of this country. The commission will reach its own conclusion on the merits of the matter by a decision which will overrule the Home Secretary. I agree with my noble friend Lord Lester that it would be helpful, if this balancing decision is to be set out as the approach that the commission must take to appeals brought before it, that some of the factors should be enumerated. For instance, Article 3 risks should be specifically referred to in some part of the primary legislation. There is a need for clarity as to what the commission should do.

My other main objection is the nature of the commission itself. It may have a Canadian flavour; however, I do not think that it thereby answers all the problems. I know of no judicial process in this country, whether a court or a tribunal, dealing with the liberty of the individual which does not tell him the substance of the allegations that he faces. Yet Clause 4(3)(a) of the Bill makes just such a provision. He is not necessarily to be informed of all the allegations that are laid against him. I understand from the remarks of the noble Lord, Lord Lester, that under Canadian legislation such a summary of allegations is required under the Canadian code. Again, the appellant need not be given full particulars of the reasons for the decision that is the subject of the appeal. It is a straightforward breach of the rules of natural justice, created not by primary legislation, with the possibility of full debate whereby this House and another place can consider the merits and importance of the national security question against breaches of natural justice; it is to be created by subordinate legislation which, though it may be by way of affirmative resolution, does not have the same force and scrutiny as primary legislation would have.

Subsection (3)(b) is just as bad as (3)(a). Proceedings may be held in the absence of the appellant and any legal representative appointed by him. The commission may appoint its own person to act on behalf of the appellant instead of his chosen legal representative. On what basis? Is the person appointed by the commission to take and follow the appellant's instructions and to have confidentiality and the benefit of legal professional privilege? Those problems all need to be addressed.

As for subsection (3)(d), which provides that the appellant "may" be given a summary of any evidence taken in his absence, that does not, in my view, accord the substantial measure of procedural justice to which the European court referred. As my noble friend Lord Lester of Herne Hill pointed out, there is nothing in the Bill which makes it mandatory for reasons to be given and a copy of the reasons for the commission's decision to be handed to the appellant.

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In addition to that, the Bill clearly envisages changes to the ordinary laws of evidence by providing for rules specifically dealing with the mode and burden of proof and the admissibility of the evidence on appeals. The safeguards which exist in our ordinary courts in relation to the use of intercepted telephone calls and mail are simply abandoned in the schedule. The Government must justify these violations of the principles of natural justice before the Bill can receive my warm commendation.

In domestic criminal cases in this country we have developed a whole code of practice in relation to matters of security and intelligence. Public interest immunity covers the sources of information, the techniques of the security services and all the other matters that need to be covered in the interests of national security. Subject to those matters, applications are made daily in the courts in the most serious cases, including cases of terrorism, which proceed with the nature of the allegations fully disclosed to defendants. Defendants remain in the court, which sits in their presence and that of their legal representatives. In cases of special security, witnesses may be concealed or the court may even sit in camera.

We already have a well developed system to deal with problems of national security and I wonder why we have to go to Canada for a code of this sort to deal with this matter. It is for the Government to justify why proceedings of this nature require such overwhelming secrecy of the Canadian flavour, such secrecy that not even the appellant himself can know the full extent of the allegations against him or be present at the hearing.

I do not consider that the Bill in its present form entirely fulfils the desire of the Court of Human Rights to ensure that the national authorities are effectively controlled by the domestic courts. Those are the operative words: the Executive should be effectively controlled by the domestic courts. Unless the gaps referred to by my noble friend Lord Lester and the matters to which I have referred are addressed, there will be a serious danger that the machinery will be challenged again in the European Court and in all probability fresh legislation would ensue. For my part, I regard this Bill as "business as usual" from the Home Office and I assure noble Lords that as far as I am concerned it is "business as usual" on these Benches.

5.55 p.m.

Baroness Anelay of St. Johns: My Lords, I add my congratulations to those already expressed to the noble Lord, Lord Williams of Mostyn, upon his appointment. I hope that he will not think it presumptuous of me to do so, having it seems only been here about five minutes myself.

We have a proud tradition in this country of honouring our international obligations and have always been a haven for those fleeing persecution and torture in their own countries. On this side of the House we believe, as my noble friend Lady Blatch said earlier, that the needs of natural justice must be balanced with the needs of maintaining effective national security. It is important that those who incite or conspire to commit

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terrorist acts should have no base in Britain. That is why the previous Conservative Government pushed hard at the United Nations to deny terrorists the protection of the 1951 refugee convention.

The Government have our support on this Bill. However, we seek clarification from them on a number of points on various aspects of it. I was pleased to hear the Minister's announcement today with regard to the rules, which is one of the points about which I was going to ask him. I am delighted to hear that the draft rules will be published in time for Committee.

Will the Government say today whether they have any plans at a later stage to give the special commission any greater role than the Bill currently proposes?

Secondly, do the Government intend that the decisions of the commission should be binding on the Home Secretary? That is not clear from the Bill.

Thirdly, what consideration have the Government given to the possible implications of incorporating the European Convention on Human Rights into British law on the deportation of individuals on national-interest grounds and on the provisions of the Bill?

Finally, like other noble Lords today, I should like to mention one or two points about the money, about which one or two amusing remarks have been made. I should like to know how the Government have calculated the financial effects of the Bill. I am not trying to be difficult or flippant on this matter; it is simply that before coming to this House I sat on appeal tribunals for 14 years and am very aware of the problems of managing their workload in such a way that all parties are treated fairly at all times and that there is a degree of cost-effectiveness about their operation. I know that it is a difficult balancing act.

Like the noble Lord, Lord Mishcon, I notice the provision in the Bill about the bail power to be given to the commission. Schedule 3, paragraph 3(2), prescribes that:

    "A person arrested under this paragraph shall be brought before the Special Immigration Appeals Commission within twenty-four hours".
It is laudable, as the noble Lord pointed out, that those under arrest should have rapid access to making a bail application. When I sit as a magistrate, I am always very keen to make sure that I am available as quickly as possible to hear bail applications. However, such a power adds both to the work of the commission and to the unpredictability of its sitting dates.

It is against that background of its workload that I found the costings for the commissioners a little puzzling. The annual sum of £1,500 projected to cover the cost of the daily rate to be paid to one member of the commission has been mentioned. I assumed before coming here today that the other two members would be volunteers to whom only expenses would be paid, but I noticed that in his opening the Minister referred to the fact that not only will one of these members come from the appeals tribunal but he or she will be a senior member of that service--one, I would venture to say, who is not accustomed to turning up day by day without any payment and certainly not without expenses.

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Schedule 1, paragraph 5(a), provides that at least one member of the commission must be a person who,

    "holds or has held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876)".
I understand that we are talking about somebody of High Court judge level or above. Yesterday I contacted the Lord Chancellor's Department to ask the daily rate for a retired High Court judge who could do this work. I am told that currently it is £492 and that from 1st December 1997 it will be £509. That would seem to indicate that the Government anticipate that the commission would sit on about three days a year and I wondered whether that fitted in with the Minister's expectation.

If the Minister is considering using High Court judges who are currently appointed, I would remind him that there are already too few High Court judges to tackle the existing caseload. I hear, "Hear, hear!" from my right. At least I assume that that has to be the case, so much use is made of Section 9 judges--circuit judges and deputy High Court judges, such as the noble Lord, Lord Thomas of Gresford, who sits on my right--who sit as High Court judges, to cover the work which the latter simply do not have time to do. Indeed, some retired High Court judges are also brought back on a per diem basis. I wonder whether the Minister has taken that into account when determining whether the current High Court judges will have time to do commission work.

Attention has also been drawn to the sum of £1,000 a year to be paid to counsel. I mention that matter with some trepidation because, like others, I do not subscribe to the public perception that lawyers are overpaid. Indeed, how could I? I am married to one. I also did some work on this point and discovered that at the moment a junior barrister, fresh into his (or her) first case, flushed with the excitement of going to the Bar, could command about £150 a day, whereas the most experienced barrister would receive perhaps £1,000 a day. So even on the average of £400-ish, one comes back to an estimate of two or three days' work a year.

It is said that it is not anticipated that the Bill would have an effect on public service manpower. However, I am very much aware that, due to the sensitive nature of the work of this commission, there would be an implication for security and for transporting the person accused, particularly if that person was not on bail, but even if on bail for making that courtroom secure. One would also have to take all that into account wherever the commission were to be held.

In addition, one would expect that some of the people who would appear before the commission by its very nature would come from outwith this country and perhaps would not necessarily be fluent in our language. There may be documents to be presented to the commission by the people who are prosecuting and acting against the defendant. Those documents would have to be subject to translation costs. Certainly, I know from my experience as a magistrate that those costs are not at all small. I await clarification of all those points from the Minister.

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We support the Bill as it ensures full compliance with our commitments under the European Convention on Human Rights, though, as I said, subject to the rules to be established by the Lord Chancellor regulating the commission. We are hopeful that it strikes the right balance between the principles of natural justice and our national security needs.

6.2 p.m.

Lord Williams of Mostyn: My Lords, life is full of bitter sweetness. Until 1st May this year the noble and learned Lord, Lord Mackay of Clashfern, occupied the Woolsack and until 5th May this year I was in gainful employment as a practising member of the Bar. It was not until the noble and learned Lord vacated the Woolsack and I left my former employment that either of us had the infinite pleasure of hearing unanimity in your Lordships' House that lawyers were paid far too little.

Perhaps I may deal with that point because it seems--I imagine to the noble Lords, Lord Lester of Herne Hill and Lord Thomas of Gresford--to be a topic of enormously gratifying interest. Virtually every noble Lord referred to it. The numbers likely to be involved are very small indeed. The panel which advised the Home Secretary in the past has in the past six years dealt with only six cases which were not Gulf War related. So I hope to have set a modest perspective. The legal members of the commission will probably be paid only expenses because one or two will still hold judicial office and therefore already be paid at public expense. High Court judges work very hard but I have never met one who claimed that he (or she) would not be able to spend a short period of time on possibly one or two cases a year. The sum of £1,000 may be an under-estimate. We do not expect many cases. At risk of intruding into private grief, I must say that the going rate for junior Treasury counsel at the moment is £200 to £300 a day. Perhaps some noble Lords will leap up immediately to say that that is grotesque under-remuneration, but, alas, that is a fact of life.

I leave remuneration on one side and go to more important matters.

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