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The Earl of Listowel: On a point of information, will those detained under this arrangement be held in similar circumstances to those on remand or to those on sentence?

Lord Blackwell: On a point of interpretation, the amendment and the clause read as if detention is an alternative if removal from the country is not possible. I see nothing in Part 4 that refers to the citizenship of the individual. Part 4 is entitled XImmigration and Asylum". Does that mean that the procedures will be relevant only for a non-UK citizen?

Lord Rooker: To answer the last question, the answer is yes—as I tried to labour in the previous debate. This measure is solely concerned with people whom we want to remove from the country if we cannot prosecute them. We cannot remove United Kingdom citizens from the United Kingdom.

The noble Earl, Lord Listowel, asked where people will be detained. I can only repeat the answer that I gave him the other night. Persons who are detained under the procedure, if any, will not be held on the immigration detention estate. There are five immigration removal centres, previously detention centres. The few people there are detained prior to removal. The chances are that persons detained under the new procedure will be in high security prisons. Such persons will be suspected international terrorists. They will not be people who have absconded from the Immigration Service, but those who are Xcopper-bottom" suspected of major offences. If they choose not to leave the country or cannot do so and are detained, they will be locked up in a suitable institution—a prison.

Lord Monson: I do not think that the Minister understood my noble friend's question. He was asking whether detainees would be held under gaol conditions or bail conditions—which are more relaxed. The location could still be a high security prison. It is a question of the conditions under which detainees will be held in such a prison.

Lord Rooker: I cannot answer that in a technical sense. The detainees will not have been convicted but will be held under a procedure whereby they can walk out of the prison any day they choose, provided that they can leave the country. To that extent, the procedure is more relaxed than being locked up. We do not say where prisoners are held because that is a privacy issue, but such information will not be kept

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secret from their legal advisers and relatives, who will be able to visit. Detainees will be deprived of their liberty, but in a unique situation.

We have not yet made a decision on Part III of the Bail Act 1976 and I regret the delay.

I can now tell the noble Earl, Lord Listowel, that detainees will be held under remand conditions.

The thinking behind the amendments is understandable, We have made it clear on a number of occasions that detention under Part 4 will only be used for a limited number of people, where no other response is possible. If we consider that there is sufficient admissible evidence to bring a prosecution, we will seek to do so at any point in the process. If we can prosecute, we will. That is our first priority. Our second priority is to remove the individual. It may be that one process is used, then evidence becomes available. One has to assume that we would take action on those lines.

Lord Avebury: I thank the Minister for clarifying that point. I understand that if part-way through the individual's detention under certificate it becomes possible to prosecute him, that will be done. Will the time spent in detention under certificate count against the subsequent sentence?

Lord Rooker: A certificate can be revoked at any time. That is for the Secretary of State. I assume that detention under certificate will be taken into account on the ground of natural justice, where someone has been locked up and deprived of his liberty. I cannot speculate on cases, but that would be the general view, I hope, of the western liberal democracy that we are trying to protect in this clause. That is what this is about. It is all about protecting our right to make such decisions, which some people are trying to take away by the use of international terrorism.

We shall prosecute if there is admissible evidence. We shall do all we can to find a way of removing someone from the country, including an assessment of possible safe third countries. We shall, of course, abide by our international obligations, as the Attorney-General has made clear. I hope that there is no doubt about the Government's sincerity.

A separate question is whether it should be stated as a requirement of the Bill that the Secretary of State will not detain someone under Clause 23 unless, for example, he has done all that he reasonably can to bring about a criminal prosecution. That sounds seductive but if there is to be such a test, the implication is that SIAC will review the Secretary of State's compliance with that test and others set out in Amendments Nos. 114A and 114C.

We strongly argue that the question of whether or not a criminal prosecution is to be brought is not for SIAC or within its competence but is for the prosecuting authorities. Some have questioned SIAC's competence to consider detention matters under Part 4. The demands made upon SIAC by the Bill as drafted are ones with which it is eminently competent to deal.

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I do not see SIAC or any other court as an appropriate body for making judgments about the sufficiency of evidence upon which to bring a prosecution. That matter is for the Crown Prosecution Service. It will already have reached the view that there is insufficient evidence and that it is not in the public interest to prosecute.

Independent discretion is an issue of constitutional importance and is covered by the guidelines applying to the Crown Prosecution Service. Such discretion is totally inappropriate for a body such as SIAC, which has no expertise in the criminal field. The implications of a body such as SIAC deciding that there is sufficient evidence to bring a prosecution, notwithstanding the objection of the police and CPS, would taint the individual with a Xguilty" label before he or she even got to court.

The fact that a criminal court can dismiss a prosecution on the basis of insufficient evidence is a right and proper safeguard for the accused. However, to give a non-criminal court the power to influence the bringing of a prosecution in the face of police and CPS objections, which is implicit, is totally different. Under the amendment, it might be that SIAC would not be proposing to the Secretary of State that a prosecution should be undertaken but stating that there were still avenues to be explored before that option should be ruled out. The constitutional question that that raises might be less stark, but the same principle applies: those matters are not for SIAC.

I make it absolutely clear that if removal were possible now, we would be removing such persons. If removal were a realistic possibility, we would detain under the existing immigration detention powers while we investigated the possibility of removal.

It is unpleasant to have to appreciate that currently, foreign nationals who are charged, prosecuted and convicted of a serious criminal offence such as rape or murder, and for whom the court issues a recommendation for deportation, may not be liable for deportation after serving their sentence if we are unable to return them to their country of nationality. If such persons have served their sentence and we cannot send them back, what do we do? It is distasteful, but we have to let them out. We cannot remove them—and it is known that we cannot remove them—because the courts have already said that if one is knowingly not processing a removal application or passport and travel documents and there is no country for the individual to go to, the authorities have no right to detain.

Occasionally when persons finish their sentence, we do detain them because there is a good prospect of removing them. That may take a while. Some countries are a bit dodgy. Sometimes it is a question of getting the necessary travel documents from the country concerned. That is not always a five-minute job.

Lord Corbett of Castle Vale: May I try to help the Minister?

Noble Lords: Oh.

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Lord Corbett of Castle Vale: I just want to remind my noble friend and the Committee that we are in the process of considering double jeopardy. Were that to be introduced, it could deal with the exact circumstances that my noble friend described and the difficulties that arise from them.

7 p.m.

Lord Rooker: It is still an issue that we cannot deport people who are nationals of certain countries, even if they have committed the most heinous of crimes. That is the situation we are in. We are trying to avoid that situation by this legislation. But that is our difficulty in relation to international terrorists.

My points related to the general criminal fraternity. But that is the situation. When listening to Members of the Committee, one could be misled into thinking that we do not lock anybody up after they have served their detention and prior to their removal. We do. But we have to be going through the removal process at the time they complete their sentence. If the courts, the judiciary and the solicitors know that no country will take the individual involved, then they are released immediately because we have no powers to detain people in those circumstances.

The amendment asks that the Secretary of State,

Xhas taken all reasonable steps".

I can assure Members of the Committee that the Secretary of State will have taken Xall reasonable steps" to deport people and will have been through that process before issuing the certificate. We would not want to go down that route. If we could not prosecute we could get them out of the country. It is only because we cannot get them out of the country that we issue the certificate in the first place.

Therefore I understand the motivation behind the amendment. But the Committee would be misguided to accept it. I hope that, in the light of my probably inadequate explanation—I put it in a fairly stark way—the noble Lord will not press the amendment.

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