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Lord Avebury: There are certain countries to which we do not deport failed asylum seekers at present. Among those are Afghanistan and Somalia. Perhaps the noble and learned Lord will correct me if I am wrong. Clearly, there would be practical difficulties in sending people back to either country. It is not that it is impossible to imagine travel arrangements to either—theoretically, people could travel to a neighbouring country and cross the border on foot, as many do. But the Government, in their wisdom, have decided that it is not fair to send anyone back to the conditions that obtain in those countries. I suppose that we could spell out in more detail what criteria the Government will adopt once these powers come into effect. Presumably they will be similar to those that are exercised at present.
Perhaps I may take this opportunity to ask the noble and learned Lord a question about the situation of Afghan citizens. A case is presently before the court where it was proposed to issue deportation notices against Afghans and it was not possible to proceed because the Immigration Appeal Tribunal decided not to entertain the application by the Secretary of State. The Secretary of State then applied for judicial review
of the Immigration Appeal Tribunal's decision on the grounds that it was its business to decide only whether a deportation order should be made and not the question of destination. The Secretary of State had already said that he would not send that person back to Afghanistan. He could not specify any alternative third country because, although great efforts had been made by the Home Office, no third country had been found which would receive him. Has that case been determined? If the Immigration Appeal Tribunal continues to refuse to hear deportation cases where the Secretary of State is not able to specify a destination, that will make it difficult for the powers in this clause to be used.
Lord Goldsmith: I understand that the case has not been concluded. As regards the powers in the Bill with which we are concerned, where by reason of legal impediment or practical consideration we cannot remove a person although we should like to do so, I respectfully suggest that in such circumstances what the noble Lord, Lord Avebury, has said may be further support for leaving the wording of the Bill as it stands, rather than trying over-prescriptively to define it.
Lord Thomas of Gresford: I am grateful for the explanation that has been given in relation to the travel arrangements; namely, that the Bill does not require the existence of a direct flight to the place to which the alleged terrorist can go.
I raised the matter because it struck me as rather odd that a person coming to this country who is suspected of being a leading member of Al'Qaeda—he is only suspected; it cannot proved—can be detained under the Home Secretary's certificate; and he can say, XYou can't detain me any longer. I want to go back to where I came from", which may be some rogue state in the Middle East. The Government say, XOh, that's fine. Goodbye. We'll put you on a plane. Change in Paris, or wherever, and that will see you home". So I am glad to hear that difficulties in travel or circuitous routes will not be used as an excuse indefinitely to detain a person in those circumstances.
I asked whether there were any other illustrations of the point of law as regards the practical considerations set out in sub-paragraphs (a) and (b) of Clause 22(1). The noble and learned Lord the Attorney-General has not been able to point to any. In those circumstances, I wonder why he cannot accept the wording as it stands. Even if there were a change in international obligations, I am sure that the United Kingdom would still be required not to send any person to a place where they would be subjected to a risk of torture or inhuman or degrading treatment.
I shall come back to the amendment, but for the moment I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 113 not moved.]
[Amendment No. 114 not moved.]
Lord Dholakia moved Amendment No. 114A:
- Page 12, line 24, at end insert—
The noble Lord said: The amendment would not delete the provisions of the clause. As the Secretary of State has draconian powers, we thought that certain safeguards were needed. We are proposing that the Secretary of State should ensure that every reasonable step is taken to avoid unreasonable detention, because that is what we are dealing with. We suggest that one step should be the consideration of bringing a prosecution under existing criminal laws or finding alternative countries as removal destinations. That is a reasonable request. Further, we suggest that the detention should be considered lawful only as long as the Secretary of State continues to take all reasonable steps in accordance with subsection (3).
The longer the period of detention under the clause—it could go on for a considerable time—the greater the requirement for the Secretary of State to show that it remains strictly necessary in the interests of national security. I beg to move.
Baroness Buscombe: I sympathise with the purport of the amendment, but we believe that the first part, in relation to reasonable steps, has already been covered and we shall look to the Minister to reassure us that, on the second aspect, he will always do as the amendment suggests.
The Lord Bishop of Portsmouth: I am grateful to the noble Lords, Lord McNally and Lord Dholakia, for producing this amendment and the next but one, to which it is clearly related. It meets a number of concerns about what appears to be an unnecessarily wide range of powers, centralised in the hands of the Secretary of State. The amendment would add an important dimension of restraint to the Bill.
Subsection (3) would ensure that the Secretary of State could not act summarily, putting the measure in the context of existing law. Subsection (4) would ensure that the Secretary of State had to be seen to be acting constructively on behalf of the detainees. Subsection (5) would ensure that any detention was not normally indefinite.
The amendment would meet the concerns to which I have referred without blunting the real aspirations of the Bill. It has a great deal of support from these Benches.
The Earl of Sandwich: I have a more general question for the Minister. Some of us find that wider questions are raised simply because this part of the Bill deals with immigration and asylum. Noble Lords will remember that when we considered the Immigration and Asylum Act 1999, we asked for written reasons for the detention of those who were kept for long periods of 12 to 18 months. That is not indefinite detention, but it is not an inconsiderable length of time. What happened to Part 3 of that Act, which provided for automatic hearings for all immigration and asylum detainees?
We have had some answers, but they have been in the form of a checklist. It is surprising that in 2001 we are not even giving our immigration and asylum detainees the reasons for their detention. A checklist is not an adequate statement under any international convention. I hope that the Minister will look seriously at that problem, although I recognise that it is wide of the clause.
Lord Avebury: I would be rather more enthusiastic about supporting the amendment had it not been for the earlier answer from the noble and learned Lord the Attorney-General to a question that I put concerning the power of the Secretary of State to continue detaining somebody after the end of his sentence. If the amendment were passed and the Secretary of State leaned over backwards to find some means of prosecuting such an individual, at the end of the sentence the Secretary of State could still continue the suspect's detention ad infinitum on the ground that he still believed him to be a threat to national security.
The situation reminds me of the South African 90-day laws, under which somebody could be detained for a certain time and then have his detention prolonged further at the end of that time. We now learn that, after the person has finished his sentence, the Secretary of State can prolong that sentence by the certification procedure, as the noble and learned Lord has explained.
The noble Lord, Lord Rooker, looks rather unsteady in his place. Perhaps he wants to intervene.
Lord Rooker: I thought that the noble Lord was sitting down and I was going to respond, but it appears that he had not finished.
Lord Avebury: I had not finished. I was going to make a further important point. What happens when a certificate has been issued by the Secretary of State because the Government do not believe that there are sufficient grounds for the CPS to have a reasonable chance of securing a conviction, but part way through the period of detention under the certification order, further evidence comes to light that leads the Secretary of State to believe that a conviction could be secured? Is the certificate then withdrawn so that the case can be handed over to the CPS and the individual can be prosecuted as he would have been if that evidence had been available in the first place? If so, will the Minister say something further about the revelation by the
X(3) This section shall apply only if the Secretary of State has taken all reasonable steps to avoid the necessity for detention; and such steps shall include the consideration of bringing a prosecution under existing criminal laws or finding alternative countries as removal destinations (or both).
(4) Detention shall only be lawful as long as the Secretary of State continues to take all reasonable steps in accordance with subsection (3).
(5) The longer the period of any detention under this section, the greater the requirement shall be for the Secretary of State to show that such detention remains strictly necessary in the interests of national security."
6.45 p.m.
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