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Lord Williams of Mostyn: My Lords, I am grateful to the noble Baroness for her explanation. I have to say at once that I am unable to support Amendment No. 4. As the noble Lord, Lord Lester of Herne Hill, observed, Amendment No. 4 would replace Clause 4 which was introduced unopposed as a government amendment in Committee. It would replace it with new provisions governing the determination of appeals heard by the special immigration appeals commission. The new clause would have a significant effect in some important respects. It is true that there would be few cases per year, but those cases are of extreme importance.

The most significant change which the amendment offers is that under its terms the commission would deal only with the issue of whether the appellant should be excluded from, or be required to leave, the UK for

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reasons of national security, international relations, or for other reasons of a political nature. The felicitous phrase of the noble Lord, Lord Lester--I shall be in trouble with Lady Lester--was the "fractured jurisdiction". I believe that to be accurate as well as felicitous. As the Bill is currently drafted--this is its virtue--the commission would deal with all aspects of an appeal which fall within its jurisdiction, including, most important, any application for asylum.

If the amendment became law, it would provide that the commission would refer appeals which it had allowed to an adjudicator, a special adjudicator, or to the Home Secretary, for further decisions on outstanding matters. That is not an efficient use of resources or an efficient way of coming to these difficult decisions. We do not believe that jurisdiction should be divided in that way. It would be inefficient and unnecessary.

The tribunal of the quality and nature of the one which is to be created by the Bill will be able to deal with all aspects of the case and to conduct a full merits review on all points. There is only a single appeal. I respectfully dissent from the noble Baroness's proposition that that represents any unfairness to appellants. As a general rule, if the national security case is not accepted by the commission, it is likely that the appellant will be found to meet the requirements of the immigration rules and be allowed to come to, or remain in, the UK.

Even if we did accept that the proposed division of jurisdiction was a sensible way to approach these matters, the amendment does not allow for any consideration of the merits of a claim for asylum or any associated Article 3 considerations in any case where the national security case has been upheld by the commission. It is important to remember what was said by me on behalf of the Government on the last occasion. One very important outcome of the judgment in Chahal's case is that it is clear that there can be no question of a balancing act between the risk to an individual and national security considerations. If there are good grounds for believing that a person will be an Article 3 risk then the national security case for his or her removal is effectively--I put this bluntly--irrelevant.

I know from our previous discussions that the noble Baroness, Lady Blatch, is concerned that in the sort of cases which will come before the commission damage may be done to the interests of the nation or the state. However, as I have said, and as the noble Lord, Lord Lester, has emphasised more than once, Article 3 of the convention is an absolute obligation. If there is an Article 3 risk, then that concludes the matter.

That is why we envisage that the commission will resolve any claim for asylum before it considers the national security case. There is no benefit to be gained from considering the national security case for removal if the commission reaches the view that asylum or wider Article 3 considerations apply.

The existing Clause 4 establishes that the commission will undertake a merits review of the cases which come before it. That was warmly welcomed by the noble

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Lord, Lord Lester, on the earlier occasion. The commission will be able to consider whether the Home Secretary was right to reach a decision on matters where he exercises his discretion--such as to deport on national security grounds--on the basis of a consideration of the evidence. It will be able to consider matters relevant to the law and to the immigration rules in respect of its wider jurisdiction. Clause 4(1)(a)(i) makes that plain: the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case.

In bringing forward the original amendment, we used the relevant aspects of Section 19 of the 1971 Act which we found of assistance. I do not think that there is any doubt that the current Clause 4 achieves what is wanted. If the commission takes a different view of the national security case from that taken by the Home Secretary, it will be able to overturn that decision; that is to say, the Bill, if it becomes law, puts into existence a machinery which involves a senior judicial figure, the senior adjudication officer, and one other person. That is the conclusion to which we came--I believe rightly--in those small number of cases. If the explanation I have been able to give assists the noble Baroness, I would ask her to withdraw the amendment.

7.45 p.m.

Baroness Anelay of St. Johns: My Lords, I thank the Minister for his reply. He has been of some assistance, but I still have some reservations. I shall want to read Hansard carefully and reflect upon what he has said. I cannot rule out returning to the issue on Third Reading.

We on these Benches may also wish to return on Third Reading to two central issues identified by my noble friend Lady Blatch in Committee. They are issues which we believe the Minister failed adequately to address at that stage. In fairness to him, I shall refer briefly to those two issues.

I heard what the Minister and the noble Lord, Lord Lester of Herne Hill, said about the Chahal case. We on these Benches have concerns that the Bill goes significantly beyond what was required by that case, and we are concerned for the reasons involved in it.

As the Bill is currently drafted, there is nothing to stop the commission from taking a compassionate view of the appellant's circumstances and deciding that those outweigh the national security aspects, and that the appeal should be allowed on that ground. That, in itself, would appear to go beyond Chahal. There could be bizarre reasons for overturning perfectly rational arguments made by the Secretary of State as to why a person should be excluded or deported for reasons of national security, only to find that the commission, whose decision would be binding on the Secretary of State, took a view that his discretion should have been exercised differently because of personal circumstances.

That could compromise considerably the interests of national security. That possibility emphasises the need for there to be a right of appeal by the appellant and the Secretary of State to the Court of Appeal on a point of law. It means also that the only way in which to deal

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effectively with that is for the commission's task to be restricted to considering the national security aspects, and whether the Secretary of State exercised his discretion correctly in that regard, and for it not to be able to take into account any other matter, such as the compassionate circumstances of the appellant, provided that there would be no failure to comply with Article 3 of the ECHR or other international obligations, in reaching its decision on whether the Secretary of State exercised his decision correctly.

I should also like to remind the Minister that in Committee he gave no answer to the point made by my noble friend Lady Blatch about whether both directions and recommendations of the commission are to be binding on the Secretary of State or merely directions and, if the latter, what might be the status of any recommendation.

Moreover, there appears to be no limit whatever on what directions or recommendations can be made. Could it, for example, include a direction that the appellant should be given indefinite leave to remain or that entry clearance should be granted to other members of the appellant's family who are outside the United Kingdom?

We on these Benches may wish to return to these matters in some detail at Third Reading. Today, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hoyle: My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.51 to 8.25 p.m.]

Referendums (Scotland and Wales) Bill

House to be again in Committee.

Lord Mackay of Ardbrecknish moved Amendment No. 52:

After Clause 4, insert the following new clause--

Scottish Parliament: White Paper to be published and distributed before referendum

(" .--(1) The Secretary of State for Scotland shall publish a White Paper detailing his proposals for the establishment and powers of a Scottish Parliament and indicating the potential constitutional implications of the establishment of such a Parliament.
(2) The Secretary of State for Scotland shall publish a summary of the White Paper.
(3) No referendum on the establishment of a Scottish Parliament shall be held less than two weeks after the summary has been published and distributed to every elector in Scotland.").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 53 and 54 which seek to incorporate some new clauses into the Bill. They follow largely the same track, although with some differences.

The amendments can best be described as being in three parts. The first part insists that the Secretary of State shall publish a White Paper detailing his proposals

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for the establishment and powers of a Scottish parliament and a Welsh assembly in the case of Amendments Nos. 53 and 54.

We have been along this road before. I do not suppose that I shall be told this evening when the White Papers are to be published. I understand--and it would be nice if government Ministers could confirm or deny this--that the Welsh White Paper was ready and could be published. In the interests of open government, I am quite sure that the Minister will tell me whether or not that is true. Obviously, it is either true or it is not true that the Welsh White Paper is ready. I can understand that because it is a simpler proposition.

The Scottish White Paper is not ready but I have been assured that the date on which it is to be published will be announced on Report. As Report stage will be a fortnight today, I wonder whether that means that we shall not receive the White Paper until after a fortnight today; or are we to receive it a little earlier? Monday seems an odd day on which to launch a White Paper and I wonder whether Friday, 18th July, might be a better day. Perhaps I may tempt the Minister to tell me on which of those days the White Paper is to be produced. Perhaps I may be told also whether it is intended to produce the Welsh and Scottish White Papers on the same day. If the argument of the noble Lord, Lord Williams of Mostyn, as regards the referendum dates is compelling, I should have thought that the Welsh White Paper should be published a week before the Scottish one so that the Welsh people will have a whole week before the Scots in order to consider the matter untrammelled by the Scottish situation. The media will be able to give their whole attention to that issue. Indeed, if I had thought about the matter earlier, I might have tabled an amendment to that effect. If the noble Lord, Lord Williams of Mostyn, is to answer this debate, he may wish to turn his attention to that proposition; namely, that the Welsh White Paper should be published next week to give the Welsh people an opportunity to have a week free from the distractions of the Scottish White Paper. If that were to happen, I should find the noble Lord's argument about the referendum dates just a little--and only "just a little"--more convincing.

Amendment No. 52 wants the White Paper to indicate the potential constitutional implications. I am not sure whether it will do that, but I hope it will. The Welsh amendment, to which my noble friend Lord Lucas will speak, invites the Government to tell the Welsh people why they are not to have tax-varying powers which the Scots are to have. The amendment in the name of my noble friend Lord Crickhowell invites the Welsh White Paper to indicate the functions and responsibilities of the Secretary of State for Wales, the Welsh Office, Welsh Members of Parliament and Welsh local government. That is fairly straightforward.

The second paragraph of all three amendments--that is, Amendments Nos. 52, 53 and 54--suggests that the Secretaries of State should publish a summary of the White Papers. I believe that there is considerable merit in that suggestion. Indeed, it actually links back to the amendment that we discussed before the dinner break, when we discussed how we collectively can get over

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the message about the referendum, and the pluses and minuses, to the public in Scotland and Wales. For example, do we send out a paper or a leaflet within which both sides would advance their arguments?

I was going to say that the noble Lord, Lord Williams, gave me some assurances in that respect, but I do not believe that he even did that. Nevertheless, he said that he would think about it on a very "maybe" basis. It was on that basis that I withdrew the amendment. However, that does not actually address the question of a summary of the White Paper. That seems to me to be reasonably politically neutral in the sense that it neither advocates the "Yes" campaign or the "No" campaign. I do not know what the White Paper will be like, but I have not yet seen one which would not have merited a summary. I believe that the same will apply to these White Papers. I would never go as far as someone who suggested that everyone in Scotland and Wales should receive a White Paper. I believe that the noble and learned Lord, Lord Simon of Glaisdale, said that it was not on anyone's summer reading list. That certainly is true. It may have to be on mine, but I would not inflict that upon the majority of my fellow countrymen or Welshmen. I believe that a summary is important and I seriously wonder whether the Government propose to produce a summary of the White Papers for Scotland and Wales.

My third point is that that summary ought to be published and distributed to every elector at least two weeks before the referendum date. I believe that to be self-evident. Interestingly enough--and I alluded to this earlier--in 1975 there was a popular version of the White Paper. In fact, I am not sure quite how "popular" it was because that was what it was called--the popular version of the White Paper. That related to the continuing membership of the United Kingdom in the European Community. However, at the same time, "Yes" and "No" leaflets were produced and distributed at public expense. So, if I can put it in shorthand fashion, the public received in the Freepost a popular version of the White Paper, together with a "Yes" and a "No" leaflet. Although it harks back to a previous amendment, I would submit that that is a fair way to present the arguments to the electorate. I hope that we may be able to consider doing just that at this time.

In 1979 none of those things happened, partly because the campaign groups could not agree and partly because the Government, under the Prime Ministership of the noble Lord, Lord Callaghan, could not agree. Their own Back-Benchers could not agree on the proposition that it should be a popular version because, clearly, who writes the popular version becomes quite important as, indeed, does who writes the accompanying commentary. Therefore, if we have to look back at 1975 and 1979, the precedents are pretty inconclusive: one points in one direction while the other points in another. That is why I wonder what direction we are to follow this time.

In summary, what we are asking for in the proposed new clause is, first, that the White Paper should be produced in plenty of time. Of course, I accept that we have now had the commitment from the Government that it will be announced or else be available by the time

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we reach Report stage. Secondly, we will have six weeks, plus or minus a week or two, in order to debate the White Papers before we vote. Thirdly, the second part of the amendments asks for a summary of the White Papers so that the electorate can actually have a brief look at the position, and the third part of the amendments asks that the summary should be,

    "published and distributed to every elector",

in Scotland and Wales at least two weeks before the referendum. As I said, I have been speaking to Amendments Nos. 52, 53 and 54. I believe that they are all important and sensible amendments which I am sure the Government will accept. I beg to move.

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