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Lord Lester of Herne Hill: It gives me great pleasure to say what I am about to say. I should like to repeat what I have already mentioned in correspondence with the Minister; namely, the gratitude that I believe we should all feel not only towards the noble Lord and

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his colleagues but also to the Home Office advisers, both legal and otherwise, for the way in which they have dealt with the problems which emerged with regard to the Bill. So far as I am concerned, the matter has been dealt with in a completely satisfactory way. As the Minister indicated, the amendment makes clear that the decision of the commission will be binding in law. That is important. It is also important because it makes clear that the substance of the appeal will be a merits review. Therefore, where the commission reaches a different decision about the exercise of discretion, it will be able to allow an appeal on the merits of the case as I believe is required under the convention.

It is also very satisfactory to know that the Government entirely take on board the need for Article 3 of the European human rights convention regarding the prohibition on torture and inhuman and degrading treatment and punishment, and the need for that guarantee to be respected not only by the commission in its jurisdiction and by the Minister, but also by any courts or tribunals in the area or, I daresay, any other relevant area.

I should like to make two points. First, until Parliament decides to incorporate the European convention into UK law, there will be a hiatus, which will arise not just in this Bill but also with regard to criminal courts or special immigration adjudicators, in those rare cases where an individual claims that return, expulsion or extradition to another country would expose him to a well-founded risk--not a risk of political persecution in terms of the refugee convention, but a risk as regards a breach of Article 3 of the convention.

Can the Minister say whether I am right in supposing that what the Government have in mind is that the Secretary of State and his colleagues will do their best to ensure that where such cases arise they will be exercising their discretion so as to secure full compliance with Article 3? Our courts will be powerless to do anything if they do not do so. Until the convention has been incorporated, they will, as at present, have to go to the European Commission and the European Court of Human Rights if there is a breach. However, I do not anticipate that that will arise. I just thought that I should mention that hiatus problem.

Secondly, although no one is a keener supporter of the incorporation of the convention than me, I am a little troubled by legal certainty. Even if the incorporating statute makes it quite clear what the courts and the tribunals are to do in giving effect to convention rights--as I am sure it will--the ordinary citizen will not be able to tell by looking at the Bill when enacted, or indeed the three immigration Acts which are already on the statute book, that special adjudicators, criminal courts and this commission will have jurisdiction to interpret and apply Article 3. The only way that they will be able to tell that is by reading all of the material, together with the incorporating statute. Provided that the incorporating statute is clear, then, if one studies all the material, one will know what the law of the land is.

My own preference in terms of legal certainty would be for specific amending legislation in due course of the immigration codes and, ultimately, a consolidating

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measure, a single immigration Act, covering the entire field so that those who are affected in the area can understand what the law is by reading a single document. Of course, that goes well beyond anything that can be accomplished by this Bill. It is not in any way an expression of discontent with the Minister's introduction, but I thought it right to raise the matter because I believe it is an object of good government that the law of the land should be accessible to ordinary people, not only to specialist lawyers and, I dare say, only a few of them.

Although I perfectly understand that what is contemplated is future legislation that will domesticate Article 3 of the convention with the other provisions, I hope in the long run that the Home Office might see its way to putting our specific statutory code into a single consolidating measure which would reflect the convention to the extent that is necessary. I am an enthusiastic supporter of the amendment and indeed of the second amendment to which the Minister spoke.

3.15 p.m.

Baroness Blatch: The cases subject to the provisions of the Bill will, by their very nature, be highly sensitive. My concern is to protect the national security interest which should not in any way be subordinated to the interests of any one individual. For that reason I have some anxieties about Amendment No. 1.

First, given that the decision of the commission is to be binding on the Home Secretary and given the seriousness of the issue--namely, that the Home Secretary of the day is being challenged for having taken the view that national security interests must be protected--it seems reasonable that he should be given a right of appeal to the Court of Appeal. Not only is the decision binding on the Home Secretary, but the wording of the amendment is very open-ended. Indeed, subsection (2) of the amendment refers to the commission making the decision and mentions the,

    "directions for giving effect to the determination".
It also appears to give a right to make recommendations without limitation. There is no description of the scope for such recommendations regarding what they could or should be; for example, what scope is there for subjectivity? What scope is there for the Home Secretary of the day to have the case that the commission puts disregarded by the use of recommendations with respect to any action that must follow the decision? Further, do the last two lines in subsection (2) also require the Home Secretary to comply with the recommendations? The wording would certainly appear to convey that fact.

A duty of the Home Secretary is to protect the national interest and national security. Therefore, I believe that we should tread very cautiously when handing the final word to a commission. I have read the draft rules--and I am grateful to the Minister for allowing me to see a copy of them--and I am not sure that they are entirely inclusive. They are very procedural, which they need to be; but what criteria will be adopted to guide the work of the commission? For example, what is the commission discussing? The noble

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Lord, Lord Lester of Herne Hill, referred to the fact that it would be a merit review. However, that is not clear from the wording of the amendment. It simply says that,

    "the discretion [of the Home Secretary] should have been exercised differently".
There is no real guidance in the wording as to what the criteria would be.

Therefore, it is not clear whether the commission, which may regard the plight of the individual appellant more favourably than the damage that may be done to the country's interests as a whole, would be free to subordinate the national interest to the interests of the appellant. I do not believe that the amendment would allow a Home Secretary to seek a second opinion. Therefore, the final word would rest with the commission. Can the Minister say what guidance is to be given to the commission regarding the criteria by which it will decide that the Home Secretary--who, after all, is protecting the national security and interest--should have exercised his discretion differently? How should he have exercised his discretion differently, and on what basis? After having considered the information and evidence given by the Home Secretary, or given on his behalf, what criteria would the commission use? Is it free, for example, to give greater weight to the evidence of the appellant and to disregard the evidence of the Home Secretary?

I have said that I was grateful to the Minister for giving me a copy of the rules. That was accompanied by a letter which promises possibly more amendments on Report. It appears that consideration will be given to whether there may be a need to provide a right of appeal in certain limited circumstances against a refusal of entry clearance on national security grounds in order to ensure that there is no risk of breach of Article 8 of the convention. To whom and on behalf of whom would the appeals be made? What would be the grounds for extending the provisions of this Bill?

Lord Lester of Herne Hill: Before the noble Baroness sits down, I hope she will indicate whether she agrees that the duty of Ministers, including the Home Secretary, is not only the paramount duty to secure national security in the interest of the nation as a whole, but also full compliance with our international treaty obligations under the convention and full compliance with the European rule of law, including the absolute prohibition on exposing individuals to torture, whether in this country or in other countries.

Baroness Blatch: I absolutely agree without equivocation that we have a national and an international obligation to abide by the European convention. During my time at the Home Office I have not found that the Home Secretary of the day, or the officials advising him, ever overtly came to any decision that they believed was in breach of our obligations under the European convention, or the United Nations conventions for that matter. We are dealing here with a number of matters. We are discussing a special measure for special circumstances. The particular scenario is the national security interest of the country as a whole. We need to have balanced judgments; we are discussing the

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judgments of Solomon and in those cases it is difficult sometimes for that balance to be struck. The plight of the appellant may be serious and may well need to be met under the convention. However, there are other solutions than necessarily providing accommodation and succour in this country if meeting the needs of an individual compromises the national interest as a whole. In such cases it is possible to seek other solutions.

After having studied all the evidence and information in relation to a particular case that is placed before him, a Home Secretary may have reached a view that the national security would be compromised if he makes a particular judgment. There is only one hearing and one final judgment by the commission. If after having been advised by officials, the Home Secretary has reached the view that the national security of this country would be compromised if he reaches a certain decision, I suggest that one hearing on behalf of the appellant is not enough. I make a plea that if this decision is to be binding, the Home Secretary ought to have a right of appeal at least to seek a second opinion as regards whether the interests of the country are not being compromised following a particular decision. I believe that the security of the country is just too important for that not to be the case.

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