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Lord Clinton-Davis: My Lords, just like some of my former clients. I believe that I have covered most of the ground. If I have not, I apologise, but we shall have the opportunity to return to it in due course. I thank noble Lords once again for having participated in this debate and given me more food for thought.
The security of the Nation is a prime responsibility for this Government, as for any government. The threat from international terrorism is a real problem for the whole of the civilized world. It is rightly a high priority for our police and Security Service to counter the activities of international terrorists and their supporters in the United Kingdom. At the same time we must ensure that our procedures for dealing with such people meet accepted standards of fairness.
Where it is possible to do so it is clearly right and proper to take action against such people under the provisions of the criminal law. That is not always possible or practicable. In the case of non-British citizens, an important weapon in our armoury in the fight against international terrorism--and against other activities which threaten our nation--is the ability, under the Immigration Act 1971, to exclude or deport the small number of foreign nationals who pose a significant risk. The powers are used sparingly. They are a vital part of our efforts to protect the United Kingdom from those who threaten us.
In the past the view was that the nature of the decisions in those cases was such that the final decision should rest with the Home Secretary of the day and, unlike other immigration decisions, should not be subject to appeal to the immigration appellate authority. Instead where a person was liable to deportation on national security grounds, he was entitled to have the case against him reviewed by a non-statutory panel which advised the Home Secretary before he took the decision.
Those arrangements, as is now well known, were challenged before the European Court of Human Rights in the case of Chahal, in which judgment was delivered last November. The background to this case is that in 1990, Karamjit Singh Chahal, an Indian national with indefinite leave to remain in the United Kingdom, was made the subject of a deportation order on the grounds of national security and other reasons of a political nature; namely, the international fight against terrorism. That was because of his alleged involvement in terrorist activities connected with the Sikh separatist movement in his homeland. Mr. Chahal claimed asylum. That was refused. As the ground of the decision to deport him was national security, there was no right of appeal to the immigration appellate authorities against the Home Secretary's decision. Nor was there any right of appeal against refusal of the asylum application in those circumstances. The security case against Mr. Chahal was considered by the advisory panel in accordance with the arrangements I have already mentioned. Having exhausted his domestic remedies, including judicial review, without success Mr. Chahal applied to the European Court of Human Rights.
In its judgment in Mr. Chahal's favour last November the court found that the existing procedures for dealing with cases involving the deportation of foreign nationals on the grounds of national security--and in particular the arrangements for challenging decisions made by the Secretary of State in such cases--were in breach of the European Convention on Human Rights. Specifically it found the procedures deficient in respect of Article 5(4) and Article 13 of the convention.
Article 5(4) requires that a detained person is entitled to have the basis of his detention reviewed by a court. The European court found that neither proceedings or habeas corpus nor for judicial review satisfied that requirement because the domestic courts were not in a position to review whether decisions to detain and keep in detention were justified on national security grounds. The advisory panel, while providing an important safeguard against arbitrariness, could not be considered a court for a number of reasons. Those included the fact that individuals were not entitled to legal representation before the panel and that the panel had no power of decision.
Article 13 requires that a person whose rights under the convention are violated should have an effective domestic remedy. The court found that neither judicial review nor the advisory panel satisfied that requirement in respect of national security cases.
Needless to say, this Government fully accept the judgment of the court and have moved quickly to respond to it by introducing this Bill. Until it is passed our ability to deport on national security grounds is severely constrained.
While the Bill is mainly required in order to respond to the Chahal case, it also takes the opportunity to provide a right of appeal to the same commission for European Economic Area nationals and those otherwise exercising rights under the Treaty of Rome in those cases where there is currently no right of appeal. Those are predominantly cases involving national security considerations.
That is prompted by a case currently before the European Court of Justice in which the Advocate General has delivered an opinion strongly supporting the appellants' case that European Community legislation requires an adequate legal remedy in these circumstances not provided by judicial review. The Government accept that it would be desirable to provide such a right of appeal.
In view of its limited purpose the Bill is short. Clause 1 establishes a new body which will be known as the special immigration appeals commission. It also gives effect to Schedule 1 which provides details of the new commission, including its membership. Appointments to the commission, as to the immigration appellate authority, will be made by the Lord Chancellor. The existing panel is appointed by the Home Secretary.
One of the members of the commission must be a person who holds or has held high judicial office. A second must be a person who has experience of dealing with immigration appeals. The Lord Chancellor's intention is that he or she should be a senior member of the immigration appellate authority, either the president
Clause 2 sets out the circumstances in which a person may appeal to the new commission. The Immigration Act 1971, and more recently the Immigration (European Economic Area) Order 1994, have previously denied any appeal in the cases described. For the most part the cases where there has been no right of appeal have been those where a decision has been taken on the basis that this would be conducive to the public good on the grounds of national security.
Clause 3 provides that the new commission will have a bail jurisdiction in respect of those cases where a person is detained under the Immigration Act 1971 and the grounds of the detention are that this would be in the interests of national security. Schedule 3 modifies the existing bail provisions for the purposes of cases dealt with by the new commission.
The detailed procedures for the new commission are not set out on the face of the Bill. However, Clause 4 indicates some of the main areas which will be covered in procedure rules made by the Lord Chancellor. These rules will, in view of their importance, be subject to the affirmative resolution procedure. Our intention is that a draft of the rules should be available to assist the detailed consideration of the Bill in Committee. I hope that the House will find that arrangement satisfactory. The noble Lord, Lord Lester of Herne Hill, and I have had what we both regard as useful and fruitful discussions. He was concerned in particular that there should be adequate opportunity for scrutiny of those rules before we discuss matters in Committee.
I do not propose to talk about Clause 4 at great length, but it may be helpful if I mention one or two aspects. The rules will make clear that an appellant will have the right to be legally represented in proceedings before the commission. Hitherto, there has been no such right.
The rules will also, however, make provision to ensure that proceedings take place before the commission without there being a risk to national security. This necessarily means that there must be provisions which restrict the need for full disclosure of the reasons for decisions to the appellant and which also allow proceedings to take place in the absence of the appellant and his or her legal representative.
In its judgment in Chahal, and in other cases involving national security considerations, the European Court of Human Rights has acknowledged that, where national security issues are at stake, consideration will almost inevitably have to be given to confidential material and that safeguards such as the ones included in the Bill may be essential. In such cases, what is needed is a remedy which is as effective as can be, given the threat to national security.
To ensure that the case against the appellant is properly scrutinised in his or her interests, Clause 4 provides certain safeguards. These necessarily fall short of full disclosure of national security information, but they build on Canadian procedures for dealing with similar cases which were commended by the European Court. In particular, the commission will be able to appoint a person--counsel--to help it in its examination of the security evidence, and in particular to look at that evidence as if on behalf of the appellant. The commission will also be expected to give the appellant as full a summary as is possible in the circumstances of any evidence taken in his absence.
The special immigration appeals commission will be replacing the present non-statutory advisory panel--generally known as the "three advisers"--which has considered cases of this type since the early 1970s. With the leave of the House, I would like to take this opportunity to thank the noble and learned Lord, Lord Lloyd of Berwick, who has chaired the panel for a number of years, and the other members of the panel for the work they have done in reviewing these difficult national security cases. The panel has, I know, provided an important safeguard for those individuals liable to deportation on national security grounds.
I reiterate that the consultations have been most welcome. I mentioned the noble Lord, Lord Lester of Herne Hill, but I wish also to mention the contribution made by the noble and learned Lord, Lord Ackner, in private discussions with me. Perhaps, as this is the first Bill that I have introduced, I may indulge myself and say that it is a pleasure to see my long revered friend Lord Mishcon back here today at fighting weight.
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