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Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. I have in mind the various comments made about judicial review. Am I to understand that, in effect, the Special Immigration Appeals Commission will have full powers of judicial review on the merits of a case, subject to the special procedure that is provided for? Am I to understand that it will have the kind of powers that the High Court would have by way of judicial reviewobviously with procedural adjustments?
Lord Rooker: My Lords, as a non-lawyerI am an engineer by professionmy understanding is that the operation of the Special Immigration Appeals Commission is effectively a judicial review on the Home Secretary's decision, first, to sign the certification and, secondly, to order the detention because he does not believe that removal is possible. That being the caseand it is behind closed doorsthe commission could review each stage of the Home Secretary's decision and how he has arrived at the point where he believes detention is the only alternative. To that extent, the commission ought to have access to all the information that the Home Secretary has, including his thinking as to why he cannot remove the person, because country A or country B is not compatible with our obligations or Article 3. To that extent, the commission would have the broad-ranging authority to examine the decision. I take the point made by my noble friend Lord Corbett that the decision would necessarily be made behind closed doors.
Lord Rooker: My Lords, with respect, that is another issue. It is one that we shall debate and, I would argue, not one relating to the order. There may be foreign nationals resident in this country who have already gone through the process and secured refugee status; they may have been classified as refugees under the terms of the 1951 convention. If we follow this process through, it could be argued that they would not be making a claim for refugee status, because that would already have been done. Clause 33 therefore takes account of this. That is best left, however, because we are getting into the details of the Bill. I may be wandering down a road where I would mislead the House, and I do not intend to do that.
I reiterate the point about the timing and why we did not want to leave it. If the order ceased to be valid, if it was not approved within 40 days, by resolution of each House, it would lapse. I have benefited from this debate, however. Without the order, we would not have had it. My officials, those responsible for designing this Bill and other Ministers, even in the other place, will have benefited from this debate today. To that extent it has been a useful operation, in terms of parliamentary accountability for the Government, to have it now rather than have it at the end of our processes.
The Home Secretary will bring forward amendments to Clauses 21, 25 and 26, which I believe will fully meet the point about the reasonableness test. We accept that all Ministers operate at all times in a reasonable fashion. If they did not, my learned friends would have something to say about it. If putting it on the face of the Bill brings a greater degree of contentment, then we are happy to do that. We shall bring forward amendments, though I do not know whether they will be brought forward in this House or in the other place.
We envisage that the validity of the derogation could be raised before SIAC and, from there, the Court of Appeal and the House of Lords. It could be challenged all the way through the judicial process. That is why we are more than comfortable in respect of Clause 29 and the point made by the noble and learned Lord, Lord Mayhew, in terms of the absence of judicial review. This whole process is a very narrow judicial review of the Home Secretary seeking to deal with an issue in the only way that he thinks is possible. Having failed in the sense of a prosecutionthat not being possible for the reasons I have explainedhe cannot remove someone and therefore is left with no alternative but to detain.
Lord McNally: My Lords, we have just seen the Minister swimming valiantly for shore, clutching the lifebelt thrown to him by the Conservative opposition. What we did not hear was any real answerother than it had given him and his officials some useful clues about the debate to cometo what I would call the
I shall not delay the House for much longer. A number of points have been made. The noble and learned Lord, Lord Mayhew, even called me noble and learned. I am not sure whether to take that as a tribute or to consult with the lawyers behind me about possible slander. The serious point I make is in answer to the noble Lord, Lord Mishcon. It was on his own Benches that we saw the polarisation of the debate: between the noble Lord, Lord Davies, arguing force majeure and the noble Lord, Lord Corbett, defending civil liberties. Perhaps I may say to the noble Lord, Lord Mishcon, that it is not that we have short memories; we have long memories. The memory we have is that, from Fox to Aneurin Bevan, oppositions have taken their opposition seriously. Even at times of crisis and even at times of war they have defended civil liberties and human rights. We believe that the Government are wrong to bring the order forward at the beginning of this process, before we have the full opinion of the House and the full dimension of the derogation that they want. For that reason, I ask to test the opinion of the House.
Resolved in the negative, and amendment disagreed to accordingly.