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Lord Brennan: Will my noble and learned friend assist us better to understand the framework of the Bill? I understand the argument to be that the amendments are unnecessary because the appeal procedure under Clause 25 gives effective protection to the person involved. In deciding the effectiveness of that protection, can he confirm that under Clause 25, when the commission decides whether or not there are reasonable grounds for the Secretary of State's decision, it determines that objectively, on the facts available to it? It does not ask whether the Minister was subjectively justified in coming to such a decision. That is an extremely important question that reflects the great argument in Liversidge v Anderson in the second world war. Do Xreasonable grounds" mean objectively or subjectively assessed?
Lord Goldsmith: Liversidge v Anderson, which has already been referred to, concerned a set of rules without the SIAC procedure, a special advocate or any of the safeguards in the Bill. My noble friend asks about the effect of Clause 25. Yes, it is objective, but I must return to that in the context of later amendments that concern the issue. I hope that we can return to that at that stage.
Lord Thomas of Gresford: With the greatest respect to the noble and learned Lord, surely the decision in Rehman, part of which I cited on Second Reading, demonstrates that the commission is gravely discouraged by the Judicial Committee of this House from interfering in any way with the subjective view of the Home Secretary when he issues the certificate.
Lord Goldsmith: I disagree with the phrase, Xthe subjective view of the Secretary of State". It is not the subjective view of the Secretary of State, it is a view based on evidence and reasonable grounds.
I stand by what I said when winding-up the Second Reading debate, which is pertinent to the debate about judicial review versus the SIAC procedure. There is no question but that the observations that the Judicial Committee of this House made in the Rehman case would apply absolutely to judicial review. It said that when considering the question of whether this, that or the other piece of information all put together amount to reasonable grounds for believing that someone is a security risk, the view of the experienced Ministerwho, what is more, is democratically accountable through Parliamentmust be paid the greatest respect.
That does not mean that the commission, having looked at the matter, is not able to say, XThis is not a justified point of view at all". There is a subtle distinction between saying that it is an objective decision which SIAC must take, and saying, which I do not accept, that it would not be right to pay enormous respect to the view already reached by the Secretary of State. However, it would examine the evidence on which that was based.
Lord Campbell of Alloway: To suggest to the Committee that because the Secretary of State is democratically elected he in some way administers more acceptable justice than is done in the High Court seems odd. It is perfectly plain, is it not, that under Clause 21 it is a wholly subjective decision of the Secretary of State. It may be taken on advice from intelligence, from his staff or whoever, but it is his own personal assessment, for which he takes responsibility. It is subjective. Surely, it is unrealistic to pretend that it could be objective. Could the noble and learned Lord deal with that?
Lord Goldsmith: I have been criticised by some for being over-generous in giving way, but I am happy to deal with all the questions. Perhaps I may respectfully remind the noble Lord that in winding up the Second Reading debate, the final words I used were intended to draw attention to the observations of the noble and learned Lord, Lord Hoffmann, in the Rehman case. He said:
The only other point to deal with in relation to this issue is the question of timing as regards the provision of information. I have suggested to Members of the Committee that the highest probability is that the person detained will immediately apply to SIAC and will therefore receive material subject to the safeguards I have identified in the special advocate procedure. However, I am happy to tell the Committee that, although we do not believe that it is necessary to put anything on the face of the Bill, at the time a certificate is issued there will be provided for the suspected international terrorist an outline of the case against him to the extent that that can be done without risking the exposure of closed material. Therefore, there will be an indication at the time the certificate is there, and then when the appeal takes place the rules to which I have drawn attention will bite.
The Earl of Onslow: I thank the noble and learned Lord for giving way. What he has just said seems to be important. The Government will provide the information required but they will not place the necessity on the face of the Bill. Why not? If you are going to do it, if you think it is right, why not put it on the face of the Bill? If you are not going to do so, it means only that you think you can duck and dive and weave a bit later.
Lord Goldsmith: If the noble Earl will allow me first to finish the point, of course I shall then give way to him. Given the existence of the rules, I suggest that it is not necessary to add to the Bill. However, I hope that the assurance I have given, which is on the record and which will be noted by SIAC and others, will meet the one slight point which remains from the amendment; that is, the timing point made by the noble Lord, Lord Campbell of Alloway.
I had hoped that my explanation was helpful. There are many other important matters to deal with in order to get the Bill right in the sense of hearing Members' concerns about it. I simply and respectfully hope that what I have said is sufficient to persuade Members of the Committee that the issue of the grounds, which it was right to raise, has been adequately covered. In those circumstances, I invite noble Lords to withdraw their amendments.
Lord Avebury: Before the noble and learned Lord sits down, will he answer my question about whether the Secretary of State has power to issue a certificate when a person has already served his sentence for a terrorist offence and whether it would then be subject to judicial review?
Lord Avebury: Yes. I was supposing that the person concerned had already served a sentence of imprisonment, had reached the end of that sentence and the Secretary of State decided that he was still a threat to national security. The Secretary of State then decided to issue a certificate in order to prolong that person's detention after the end of his sentence. In those circumstances, where the grounds on which the Secretary of State had reached his conclusion were obvious because he had been through a court of law, would that decision be subject to judicial review?
Lord Goldsmith: I am obliged to the noble Lord. First, everyone, whether or not they have served a sentence, would be in the same position; that is, the powers under Clause 21 of the Bill would apply. If the Secretary of State had reasonable grounds, a certificate could be issued.
As regards the procedure under those circumstances, it would be the same; that is, the SIAC procedure would apply rather than judicial review in the technical sense of the administrative court dealing with it.
As regards the question of whether information would be provided, it would come back to the question of whether that was sensitive information. The commission, under the rules to which I have drawn attention, would be able to judge whether the truth of the matter was that it was all information which the applicant knew already and therefore there was no reason why it should be withheld from him. Indeed, I would expect that to be the decision which the Secretary of State would make in any event. However, if the Secretary of State had good grounds for saying that the information was sensitive, that would be examined by the commission and it would decide whether or not it should be passed to the applicant. I hope that that answers the noble Lord's question.
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