Examination of witnesses (Questions 200
WEDNESDAY 14 NOVEMBER 2001
MP, MR ROBERT
200. I understand that, and that is a very detailed
explanation of what is in the Bill. But the question then arises
why have you taken that power away from SIAC to look at the two
together, both the national security and the asylum? Why is that
(Mr Walsh) SIAC will still be able to look at the
national security aspect, and it will also be looking at the asylum
claim. We are not saying that a person cannot apply for asylum.
What we are saying is that the 1951 Convention already has provisions
in it which say that if someone comes within the scope of article
1(F), then they are not a refugee, and to some extent this is
just making more clear that that provision exists and relying
on it. So it is not the case under this provision that the Secretary
of State is not looking at the asylum claim.
201. It is not the Secretary of State; it is
(Mr Walsh) If SIAC comes to the view that this person
is to be excluded, under the terms of the 1951 Convention, that
means that they cannot be a refugee. To that extent, you could
argue that looking at whether or not they have a well founded
fear of persecution for the purpose of the 1951 Convention is
not a necessary thing to do. This provision makes that clear.
202. You are saying that the position that we
have had up until now, where SIAC can have the two, national security
and asylum claims in parallel, was not in reality what should
have been happening?
(Beverley Hughes) I think it made the situation less
clear in terms of those circumstances in which we had concerns
about a person's behaviour on a national security basis. It makes
it less clear what our course of action and responsibilities to
that person are if we also consider at the same time the asylum
claim. What the clarification of that process does is to say that
if somebody is excluded by Article 1(f) or 33(2) from the refugee
status the process that we are setting forward in the Bill, in
terms of consequences of that assessment being confirmed by SIAC,
is a valid one and the water cannot be muddied by an asylum claim.
203. That is the key.
(Beverley Hughes) It is clarity really.
204. If we go back before 11 September, outwith
the immediate security problems, what representations have been
made to ministers and departments from immigration officials or
Special Branch, MI5, seeking the sort of changes which we have
just been discussing with regard to detention or deportation?
(Beverley Hughes) In a sense, we have been testing
out in a small way anyway since the Special Immigration Appeals
Commission was established in 1998 a number of cases which deal
with the same kind of issues. There have been through that process
at the moment only three cases. In two of those cases where individuals
entered the country who were fairly well known to be involved
in terrorist activities, they entered the country clandestinely.
As a result of those two people going through the SIAC process,
we reached the dilemma that I outlined at a very early stage,
in which assurances from the country to which we wanted to deport
them were not accepted as satisfactory by SIAC, so those two people
had to be released back into this country and are still here.
It is partly 11 September; it is also partly the result of those
experiences that raises the valid question: is it right, when
we reach that point when we do have people about whom we are concerned,
that the only option available to us is to release them back into
the community? It is as a result of some of those cases that we
have concluded that that is not satisfactory.
205. From the evidence we have heard from all
the parties, I have considerable sympathy with the new changes
in this regard, but what is the danger of the government being
open to the charge that it is using 11 September as a vehicle
to put through those changes which it had in mind all the time?
Secondly, if that is anything approaching a valid charge, how
temporary in actuality will the new powers be?
(Beverley Hughes) These particular proposals that
we are focused on at the moment as part of the Bill are partly
a result of experiences anyway through the SIAC process, but the
timing in terms of bringing them forward obviously is a reflection
of the fact that we did see a step change of some degree in relation
to the events of 11 September and the methods that terrorists
are willing to use. Creating mass casualties in a no warning suicide
event such as that does mean that the need for us to be able to
contain people who are a threat, the need for a much more intelligence
based approach to protection and defence, is obviously very much
heightened by those events. That is a combination of two things.
It is certainly not the case that we are trying to do things we
wanted to do anyway. There is a clear link back to 11 September
and what that has taught us about the ways in which terrorists
will now be able to operate and how we must respond to that. In
terms of the timescale, we regard this as a serious power. We
have made provision in the Bill for it to be temporary and we
have enabled Parliament to take the decision on how long the international
circumstances are such that we still need to keep it.
206. How long do you envisage someone could
remain in prison without trial under this Bill?
(Beverley Hughes) That is difficult to hypothesise
about. There is a mechanism for review every six months. There
is not a provision in the Bill for a maximum number of reviews.
Alongside the fact that I have said we envisage the powers being
temporary and related to the international situation, there will
also clearly be a time when this power does not exist and therefore
anybody detained will be released because the power to detain
them will not exist. I am not trying to dodge this question.
207. I admire your confidence that there will
clearly be a time when this power does not exist. History tells
us that temporary measures have a way of becoming permanent.
(Beverley Hughes) That is a matter for Parliament
to determine in the future. It is not something I can predict
or hypothesise about now. It is difficult to answer your question
precisely and I am not trying to hedge it. It is simply difficult
to know how events are going to evolve over the next one or two
years or more and therefore how long we will have the power in
208. It is theoretically possible for someone
to remain in jail for five or ten years?
(Beverley Hughes) In so far as we cannot predict now
how long we will Parliament will keep the power, it is theoretically
possible in terms of the course of the Bill but it is not something
that we envisage.
209. Could you explain why it is desirable to
remove the possibility of judicial review from SIAC decisions?
(Beverley Hughes) We regard SIAC itself as a judicial
examination. I have already outlined the membership of the Commission
that will oversee and examine the evidence that si available to
the Secretary of State in individual cases. The process itself
builds in that judicial examination. To provide for yet another
layer of judicial examination we feel is unnecessary and delays
the process. People will have a right of appeal on a point of
law to the Court of Appeal and, if they are given leave, onto
the High Court. We think that the proposals themselves provide
for sufficient judicial oversight both of the evidence and of
the way the law is being applied and it does not need another
210. Can you give us examples of problems that
have arisen because of the current right to judicial review in
(Beverley Hughes) Two things: the delay in the process
and the evidence available to SIAC and to the Secretary of State
is not always evidence that can be made available in an open court.
This is part of a wider attempt to streamline related processes
which we are not dealing with in this Bill but we will be dealing
with it in a later Bill in terms of extradition and to make those
processes consistent we do not want to have unreasonable opportunities
for people to extend these processes generally. We do want to
make sure that there is inbuilt judicial examination and we think
we have sufficient in the proposals as we have outlined them for
this particular power.
211. How many applications for judicial review
have been made with SIAC or if there are not examples is it a
matter of your anticipating there would be in the future?
(Mr Walsh) There have not been any judicial review
changes to SIAC decisions so far. There have only currently been
three cases before SIAC and we would expect, for a number of reasons,
many more decisions of SIAC in the future both because of the
review process meaning they will have quite a few decisions to
take and because the numbers concerned might grow somewhat. In
that sense, it is a preventative measure in the expectation that
it might happen. There is already a right of appeal to the Court
of Appeal and then to the House of Lords. There is a statutory
appeal provided for and this measure puts beyond doubt that that
is the route that should be taken. Also, the Secretary of State
will be making various certificates under these new measures,
a certificate in relation to detention or in relation to non-substantive
consideration of an asylum claim. Challenges to that certificate
should go to SIAC and people might at the very initial stage try
and challenge that decision through judicial review. It is right
to see this as a kind of preventative measure in case there are
more challenges in the future. It is not based on any specific
problems in relation to SIAC so far.
212. You are seeking to abolish something that
has never been done?
(Mr Walsh) We are seeking to make it clear that judicial
review is not to apply to decisions related to SIAC. It is correct
that there have been, to my knowledge, no judicial review challenges
to SIAC so far. There are various new procedures that have been
introduced here involving two new certificates from the Secretary
of State, so those procedures will be additional to the ones that
currently exist. One of the aspects of this provision is to say
that challenges to the Secretary of State's certificates should
go straight to SIAC and that attempts to intervene at the first
stage through judicial review of the certificates should not be
213. Do you think the courts will let you get
away with it?
(Beverley Hughes) If it is passed, this will be the
law. This will be the legal process defined in statute.
214. You do not think the judges will look askance
at anything that is designed to limit their jurisdiction?
(Beverley Hughes) We do feel that because of the composition
of the Commission led by a High Court judge, there is not any
further need for judicial review outside of that process. There
is an inbuilt judicial review element within the SIAC process
itself and therefore to add another layer is unnecessary.
215. The suggestion that has been made to us
by some witnesses is that you are really seeking to deal with
a problem which does not exist on the grounds that the courts
have never been all that keen to get involved in judicial review.
They have encouraged people to follow other existing procedures
before they will entertain judicial review.
(Beverley Hughes) I could turn that around and say
that, given that there has not been any attempt to have a judicial
review in the three cases we have had so far, that demonstrates
the fact that there is judicial examination that appears to be
working. It would be much better to clarify the detail of the
process at this stage in the legislation and that is what we are
216. Would you accept, Minister, that those
who will argue that on balance probably the government has got
it right and that however undesirable it is detention in such
circumstances as a threat of terrorism is justified, nevertheless
would be happier if judicial review was allowed?
(Beverley Hughes) I cannot see myself what a further
judicial review would add to the process except to delay it and
complicate the process. Judicial review has not been sought in
the three cases we have had. That suggests that the judicial element
in the process, particularly with the strengthening around the
certification that Mr Walsh identified, is sufficient and I think
it is preferable to be clear about the process. I think I can
assure people that the people involved in the Commission will
be undertaking a process that is a judicial review process and
it is part and parcel of the system.
217. There would be a feeling that, bearing
in mind these very exceptional powers which no one can like, including
I assume the government, at least judicial review would provide
some basis in law whereby a person would be able to have the case
examined against him or her. I am just wondering if the matter
is such that the government is not willing to consider what would
happen in Monday's debate and on the committee stage. Are you
saying that the government has so made up its mind there is no
possibility that they would look at the question of judicial review?
(Beverley Hughes) In terms of the forthcoming debate,
we have said and the Home Secretary has reiterated that we will
listen to any sensible proposals during the course of the debate.
If that assists in improving the proposals that we are putting
forward throughout the Bill, then we are open to argument. In
general terms on this particular issue, we would have to be pretty
strongly convinced that adding a second opportunity for judicial
examination, when we have built one in very clearly and very strongly
into the process itself, was an improvement.
218. We have had a memorandum from a leading
lawyer, Martin Howe QC. Since I am not a lawyer, I am seeking
your views. He says, ". . . clause 30 of the Bill appears
to permit the validity of the order designating the derogation
under section 14 of the Human Rights Act 1998 to be challenged
. . ." and since it could be challenged before the Special
Immigration Appeal Commission there is an appeal from this tribunal
to the Court of Appeal and thence to the House of Lords. He seems
to be arguing that section 30 in certain circumstances would allow
such appeals to occur to the higher courts in the land. Is that
(Beverley Hughes) There could be an attempt in the
context of an individual case, through SIAC, to challenge but,
to be quite frank, I do not think because of the legal provision
that would be made in the Act that that would be a successful
challenge at all.
219. I am sure the lawyers in due course will
find plenty to argue about in court.
(Mr Walsh) It is correct that if someone is wanting
to challenge the derogation itself clause 30 provides the challenge
to that. It should initially be through SIAC and from there, on
a point of law, SIAC's decision can go to the Court of Appeal
and, if necessary, the House of Lords. That structure is the same
for anything virtually that SIAC does. In terms of its decisions
on a deportation order or in terms of a certificate on detention,
the case would go to SIAC and, if there was a point of law challenge
to that, it could go to the Court of Appeal with leave and after
that the House of Lords. Clause 30 provides the same structure
for challenges which are based partly or wholly on the validity
of the derogation order itself.