My Lords, noble Lords will know by now that Clause 12 of the Justice and Security Bill amends the Special Immigration Appeals Commission Act so that the commission—SIAC—is able to consider applications to set aside exclusion or naturalisation decisions, which have been made on the basis of sensitive material.
Currently, we have a rather unsatisfactory arrangement whereby the only course of action open to an individual who wishes to challenge the decision to exclude them from the United Kingdom, or refuse to allow them to naturalise as a British citizen, is to seek judicial review. The problem is that our High Court does not have the capacity for closed proceedings. Where the decision in question has been made by the Secretary of State on the strength of sensitive evidence, the court cannot consider it. The JR claim is therefore stymied, to the satisfaction of neither party, nor to the interests of justice.
In the case of AHK, the High Court called upon Parliament to remedy this situation through legislation; hence, Clause 12. The Joint Committee on Human Rights has also supported this approach. The amendments before the House are intended to ensure a tidy transition from the old arrangements, towards the new arrangement in which SIAC will consider the application to review decisions such as these.
First, there is a jurisdictional matter relating to the United Kingdom’s Crown dependencies. Officials in the Isle of Man and Channel Islands have requested the power to extend the provisions in Clause 12 to their own territories by way of permissive extent. Accordingly, we should allow for these sections of the Bill to be so extended, with or without modification. The Government and our friends in the Crown dependencies are quite sure that we would not want inadvertently to create a loophole on the Isle of Man or Channel Islands whereby justice is done differently from the UK mainland.
These amendments also propose that the Bill’s rule-making power shall include provision for “transitional” exclusion and naturalisation cases. The Government are keen to allow for a seamless and fair transition from old arrangements to new. It would not do to have a two-tier system in operation, in which judicial review proceedings already before the courts would continue to be heard in the imperfect setting of the High Court, while decisions made after the commencement of Clause 12 would benefit from being heard in SIAC. There are a number of JRs already on the books of the High Court, with judges unable to consider key evidence on which the Secretary of State’s decision was based. Accordingly, it seems right and proper that, in these cases, the claimant be given an opportunity to apply to have their case heard afresh in SIAC, where a decision can be made that takes into account all of the relevant evidence.
There will also be a number of cases in which, for instance, a decision has been made to exclude someone shortly before the commencement of Clause 12, leaving them a window of opportunity for applying for a JR which runs over into the new arrangements. It would be untidy to allow these claims to be considered in the High Court, and would create a two-tier system. It would be preferable for the Secretary of State to be able to certify material as sensitive on or after commencement, thereby transferring the venue of redress to SIAC. I should add that the amendments will allow for the rule-making power to take effect—commence—from the day that the Bill receives Royal Assent. This is consistent with the rule-making power already set out in the Bill.
These amendments, while not altering the fundamental purpose of Clause 12, will ensure that we are fair when offering individuals a suitable avenue of redress in respect of decisions that have been made against them, and will eliminate the possibility of inconsistency as to how we go about that. I beg to move.