Joint Committee On Human Rights Fifth Report

Procedural safeguards and due process rights 1: Right to a speedy review of lawfulness of detention

46. The safeguards for individual detainees centre on the availability of an effective right of appeal to SIAC, and the effectiveness of the six-monthly review of detention by SIAC. In order to make use of the right to appeal, a detainee must have timely access to effective legal assistance. The procedures in SIAC, and, on appeal, the Court of Appeal and House of Lords, must be such as to allow the detainee to present his or her case as effectively as possible, and to secure a fair hearing. So far, there has been no substantive hearing by SIAC. The first group of appeals against certification and detention, to which reference has already been made, began with a hearing to decide whether the derogation order was lawful and whether section 21 of the ATCS Act discriminated unlawfully on the ground of nationality. These matters were dealt with as preliminary issues. The decision of SIAC was followed by an appeal, and, as noted above, there is now understood to be a pending petition for leave to appeal to the House of Lords. SIAC has decided not to hold substantive hearings on the justification for the certification in individual cases until the preliminary issue has been finally settled.

47. As a result, some detainees have already been in detention for fourteen months without having been able to obtain a decision about the legality of their detention from an independent and impartial tribunal after a fair adversarial hearing. Lord Carlile has noted that it would be very hard to justify delaying the commencement of substantive hearings until after the conclusion of any litigation in Strasbourg that might follow a decision of the House of Lords.[33] We agree. We consider that there is a significant danger that delaying substantive hearings amounts to a violation of ECHR Article 5.4, which provides, 'Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.' Admittedly the review procedure is available, but (as Lord Carlile points out[34]) the remedies available after a review are less satisfactory than those following a successful appeal. In particular, on a review SIAC has no power beyond cancelling the certificate if it considers that there are no reasonable grounds for the Secretary of State's belief that the detainee's presence is a risk to national security, or his suspicion that the person is an international terrorist.[35] By contrast, on an appeal SIAC may also cancel the certificate if it considers that for some other reason the certificate should not have been issued.[36]

48. The failure of SIAC so far to conduct any substantive hearings on appeals seriously weakens the effectiveness of the appeals as a safeguard for Convention rights against arbitrary use of the detention power. This might well be regarded as a reason for refusing to continue the operation of the detention power. Although each House will no doubt wish to balance that consideration against other countervailing considerations, it is a relevant factor to which we attach considerable importance, and we accordingly draw it to the attention of each House.

33   Lord Carlile's ATCS Act review, pp. 9-10, para. 3.6 Back

34   ibid., p. 16, para. 4.14 Back

35   ATCS Act 2001, s. 26(5) Back

36   ATCS Act 2001, s. 25(2) Back

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