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Lord Williams of Mostyn: There is no question of a tribunal of this quality doing as the noble Baroness, Lady Blatch, indicated; namely, disregarding the evidence of the Home Secretary. That is quite inconceivable. This is not a mechanism set up on behalf of the appellant alone; it is a mechanism of an independent body of high quality. We must bear in mind the fact that the judicial member will at the lowest level be a member of the High Court bench; in other words, someone who has held or is holding high judicial office.

It is true, of course, that one of the important duties of any Home Secretary, or any government generally, is to safeguard national security. However, that is not the only duty. The relevant consideration is whether we are to be ruled by men or ruled by laws. The purpose of this amendment is to ensure that the decisions of this independent body will be binding. There is no appeal either for the appellant or the Home Secretary. We have absolute confidence in the independent review. The judicial member will be as I have specified. No one lower than the chief immigration adjudicator will sit as the second member. The mechanisms are in place to fulfil our international obligations, as the noble Lord, Lord Lester of Herne Hill, said.

I turn to the observations that he made. I am pleased that he is back in robust health. He spoke of legal certainty in a rather different context. There is certainly one legal certainty; namely, that he will never give up his fight for what he believes to be human rights as regards this jurisdiction. He is a doughty proponent and, judging from his questions this afternoon, a diligent and experienced fly fisherman. He knows that he will not be able to draw me on the precise final form of incorporation of the European Convention on Human Rights because he is a most valued participant in the continuing discussions that are being held. We think that

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we have the balance right. We have responded to precise observations, questions and criticisms which we thought were of virtue and value. We have dealt openly, and, I hope, responsively and responsibly with the problems that were mentioned on the previous occasion. I am grateful that those were pointed out.

Baroness Blatch: Before the noble Lord sits down, I wish to point out that if I gave the impression--it is possible that I said it--that the commission could disregard the evidence of the Home Secretary, that was not what I intended to say. What worries me is that having had regard to the evidence of the Home Secretary, greater weight could be given to the views of the appellant. I take note of what the Minister has said; namely, that we are ruled by laws and not by men. However, we are ruled by men who administer the law. Therefore it is a matter of human beings at the end of the day. It is not unknown for eminent, highly qualified people sitting in judgment to reach a view that is different from a view that is reached subsequently by another group of highly eminent people. One is not saying that a judgment is wrong, but sometimes two or three sets of highly eminent people can reach different conclusions. The security and interests of this country are crucial to the country as a whole. Therefore I believe there should not be just one judgment; there should be a right of appeal. After all, the appellant has the right of appeal. He has already been judged by the Home Secretary of the day and may then have taken the case to appeal. It seems to me only fair that the Home Secretary of the day should have a right of appeal to the Court of Appeal in the interests of the country as a whole.

Lord Williams of Mostyn: The noble Baroness referred to disregarding evidence. The tribunal will have to balance different views and opposing judgments. Of course laws are administered by men and sometimes by women. What one has to decide is whether a political executive appointee--that is, any government Minister--is to reach a definitive conclusion in areas as grave as the ones we are discussing. We have an international obligation--Chahal has affirmed that. We therefore propose to establish and honour that obligation in our law in the way that I have specified.

On Question, amendment agreed to.

Clause 4 [Procedure]:

3.30 p.m.

Lord Williams of Mostyn moved Amendment No. 2:

Page 3, leave out lines 15 to 18 and insert--
("(c) make provision about the functions in proceedings before the Commission of persons appointed under section (Appointment of person to represent the appellant's interests) below, and").

The noble Lord said: I hope it may be convenient if in moving Amendment No. 2 I speak also to Amendment No. 3. They concern the role and appointment of the special advocate. As I explained at Second Reading--I think to the general agreement of the Chamber--national security considerations will necessarily place certain restrictions on proceedings that

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take place before the commission. The noble Baroness, Lady Blatch, and I have discussed this matter. We disagreed on emphasis rather than the fundamental principle that sometimes national security considerations will involve certain restrictions. One of the restrictions is that the proceedings may have to take place in the absence of the appellant and his or her legal representative.

At Second Reading I drew noble Lords' attention to the fact that the commission would be able to appoint a person to help it in its examination of the security evidence, and in particular to look at that evidence as though on behalf of the appellant. I believe that that was generally welcomed by this Chamber.

We considered further the role of that person and the mechanics of appointment. We reached the conclusion that certain amendments to the Bill are needed. We concluded in particular that to ensure the independence of a special advocate it would be more appropriate if the person were to be appointed by the Attorney-General or his or her equivalent. We also take the view that the role of the special advocate should be to represent the interests of the appellant in those parts of the proceedings from which he and his legal representative are excluded. That will probably mean that he or she will need to be present throughout the proceedings.

Finally--it was a distinct point raised on the last occasion in this Chamber--we believe it important to make it clear that the special advocate will not have a client relationship with the appellant. We do not judge the situation to be workable on any other basis.

The new clause, and the amendment to Clause 4 make, I hope, the necessary clarifications. I commend them to the Committee. I beg to move.

Baroness Blatch: I have one question for the Minister. What is the expected status and legal experience of that person? Does the Minister or the Home Office have any views on that?

Lord Williams of Mostyn: It will ultimately be a matter for the independent professional determination of the Attorney-General. We discussed this issue on the last occasion. Bearing in mind that there are likely to be relatively few appeals per year, the probability is--I say that without in any way attempting to interfere with or bind the discretion of the Attorney-General; such would be improper--that it would be the same sort of vetted person as one who prosecutes for the Treasury in important, delicate, sensitive national security matters. Again, I hope that the noble Baroness will consider that that is a device of practical utility.

Lord Lester of Herne Hill: The Delegated Powers Scrutiny Committee drew attention to the potential width and importance of the rules under Clause 4 and expressed the view that it was admirable and essential that the Minister undertook at Second Reading to make a draft of the rules available to the House, to assist the detailed consideration of the Bill in Committee. I am glad that it expressed that view. I am even more glad that the Minister indicated at Second Reading that that would be done. I have gone carefully through the draft

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rules. They seem to be an extremely well designed set of rules that seek to be fair without incorporating the full panoply of natural justice as though we were concerned with a criminal trial. I respectfully did not agree with the views expressed by my noble friend Lord Thomas in winding up when he spoke as though we were concerned with a normal criminal trial, and appeared to criticise what was contemplated.

I believe that where national security is at stake, one needs to do the best one can for the individual appellant without sacrificing the overriding interests of national security. One of the reasons that I am so complimentary to Ministers and officials is that they have looked carefully at the Canadian immigration law and practice and procedure which was commended by the European Court of Human Rights. I do not go into much detail, but they have produced a solution which improves upon the Canadian position. It would not satisfy a purist. It would not satisfy someone who believed that nothing less than a full trial with full natural justice would suffice.

However, I believe that the amendment is a fair compromise. I welcome the fact that the amendment makes clear that the law officer will appoint counsel. It makes clear that counsel's job is to represent the interests of the appellant but that the appellant is not to be his or her client. That is important. I believe it inevitable that under the rules some evidence will be produced in the absence of the appellant and that the appellant will not receive full reasons in all circumstances.

I see that the noble and learned Lord, Lord Wilberforce, is in his place. Many years ago, I think in 1970, he adjudicated in the Crockfords Gaming Board case in which the puzzle was rather similar: how much information could one give to someone suspected of having undesirable associations in the world of gambling and the mafia? How much natural justice could be provided? The Court of Appeal of the noble and learned Lord, Lord Wilberforce, made it clear that there had to be fairness but not full natural justice in the traditional sense of a full trial.

I believe that the amendment is entirely appropriate. The draft rules accompanying the amendment will be subject to further debate when they come before the House in their final form for the affirmative procedure. I believe that the amendment is well designed and should have the support of the whole Committee.

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