Joint Committee On Human Rights Fifth Report

4. Letter from Lord Carlile of Berriew QC to the Chairman

Thank you for your letter of the 23rd January 2003.

I share totally your Committee's view of the need for close co­operation between our respective reviews. I am happy to provide whatever help I can in relation to the JCHR's review of the detention provisions of the Anti­Terrorism Crime and Security Act 2001.

My first report will be published within a few days. Although necessarily I comment on derogation issues in so far as they affect the operation of sections 21 to 23, I have attempted to make it absolutely clear that it is not for me to comment on the derogation as such. The procedures for derogating from the ECHR are certainly outside my remit. Also plainly outside my remit is the question of the emergency, which has taxed your Committee over a considerable period. My report has to be based on the presumption that the Act is lawfully enacted in terms of international human rights law, because of the terms of my review as set out in section 28.

My review will cover—

  • The process of certification carried out by the Home Secretary: to this end I have examined each case, including the closed material made available to him

  • The procedures surrounding appeals and reviews by SIAC, including the nature of the process and the role of the special advocates

  • The form of detention currently in use, and whether some separate establishment should be used rather than the two top security prisons currently holding the detainees

I hope that the process of my review will strengthen the accountability of the process of certification and detention. I shall reach conclusions as to whether the detention power has been used properly in each case, and as to the need for detention by broad measurement of my perception of the risk the detainees present to the public.

To answer the specific questions at the end of your letter—

  • I have been briefed generally on the level of threat. I have assessed separately the threat posed by each detainee by examining the papers, in effect putting myself in the position of the Home Secretary

  • My report will make clear, at least by plain implication, my view of the effectiveness of the detention provisions in combating that threat

  • I shall make some comments on the possibility of means other than detention for combating the threat without the detention powers: this is a matter likely to provoke further debate, not least in the present climate of media hostility to allowing asylum­seekers to enter the UK

  • I shall make clear my views as to whether the detention powers are working adequately

  • I shall comment on the conditions and rights of the detainees. I have been in discussion with the Home Secretary and the Prison Service Directorate about these issues

If I can help further, do not hesitate to ask. If it would be of assistance, I should gladly meet your Committee informally or formally.

27 January 2003

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