My Lords, I want to speak in support of Amendment 67, in the name of the noble Lord, Lord Coaker. I have listened to the last hour or two—I have lost count of how many hours of debate there have been—and have restrained myself, perhaps uncharacteristically, from intervening. There were contributions from, for example, my noble friend Lord Anderson, who has great experience, having appeared in courts in which I have not; from the noble and learned Lord, Lord Falconer of Thoroton, who has been a very senior Minister; and from the noble and learned Lord, Lord Hoffmann, who has given judgment in some of the relevant cases. I thought I would leave it to them to deal with the legal aspects.
I come to this as a lawyer who has spent 38 of the last 40 years as a Member of one or other House of this Parliament. I am concerned about the balance between the legal position created by a piece of draft legislation and the role that we legitimately have in these Houses, particularly in the other place, which is more democratically accountable than we are, although we are reluctant to deny at least some level of democratic accountability.
I do not understand this concept of deterrence. There are two views on deterrence, and they are simply stated: either you believe that the provisions are deterrents, or you believe they are not. You can actually make pretty respectable arguments both ways. It seems to me that the deterrent that would stop people coming in small boats is to deal with the cases efficiently, which has not been done at least until very recently—in other words, to ensure that those who make what might well in the vast majority of cases be unjustifiable and inadmissible requests to be allowed to remain in this country, leave this country, after due process, as quickly as possible—and to ensure that Parliament retains some oversight so that it can see that the new law is being dealt with in a way of which we are not ashamed and that accords with British legal standards. Amendment 67, which I am sure the noble Lord, Lord Coaker, will allow me to say is modest, would at least allow Parliament to have that oversight of public spending and the way a new and unusual law operates to ensure it is fair and that there is value for money.
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There are some very odd things about this Bill. If noble Lords look just for a moment at Clause 5, it encourages the question: when is a Minister of the Crown not a Minister of the Crown? It provides the following in relation to interim measures:
“It is for a Minister of the Crown (and only a Minister of the Crown)”—
it is very unusual to see a sentence such as that in a statutory provision—
“to decide whether the United Kingdom will comply with the interim measure”.
There you see the language of judicial review: he or she is only a Minister of the Crown because you can judicially review a Minister of the Crown. But then your eye wanders down to Clause 5(4)(b):
“a reference to a Minister of the Crown is to a Minister of the Crown acting in person”.
So he is actually a Minister of the Crown who is not a Minister of the Crown; he is acting in person, so that means, I assume, that you cannot judicially review the decision he has taken, because although he happens to walk into this building as a Minister of the Crown, this decision is taken as though he was sitting in their sitting room in East Cheam or wherever they happen to live.