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The Earl of Listowel: Before the Minister sits down, I thank him for his response to my question. The prisoners will be on remand and will therefore be able to have more frequent visits from their families. As was said in the Second Reading debate, that will probably be mainly in maximum security prisons.
A concern has been raised with me that when a closed visit takes place—there is no direct physical access to the inmate—a woman may be strip-searched twice before reaching the prisoner. We may well be talking about Muslim women in this regard. As we are discussing people who are detained, will the Minister undertake to look carefully at that issue and see whether changes can be made?
Lord Rooker: The rules are the rules and everybody will be treated exactly the same. Those people will be locked up. I have to warn the noble Earl that there are not that many suitable prisons. It will do no good saying we have to put them in local prisons, because it will not work that way. These are highly refined
international terrorists and will be detained in suitable prison accommodation with suitable restrictions and constraints on those who visit them. But they will be held under remand conditions. A unique operation will be taking place and hopefully it will not apply to many people. However, there will be a few.
Lord Phillips of Sudbury: Before the Minister sits down, it is not a minor point to say that he talks about Xhighly refined international terrorists". But they are only suspected of terrorism and we should not forget that in this debate.
Lord Dholakia: I thank the Minister for his explanation. Perhaps I may remind him that he constantly bases his case on the premise of international terrorists. But at Second Reading the noble Lord, Lord Rooker, said that during the Gulf War almost all the people detained—Palestinians, Arabs and Iraqis—were eventually found not to be terrorists at all and had to be paid compensation.
I shall study the Minister's response carefully because there are some difficulties in interpreting many of his remarks. I shall read Hansard carefully and, if we are still not happy, we may come back to this matter on Report. In the mean time I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
Clause 25 [Certification: appeal]:
Lord Goodhart moved Amendment No. 114B:
- Page 13, line 3, at end insert—
The noble Lord said: The purpose of Amendment No. 114B is to ensure that, where somebody is certified as a suspected terrorist and therefore detained, and submits an appeal to SIAC, they are brought before SIAC within seven days of their appeal being lodged. Its purpose is to ensure that a suspected terrorist is brought before a judicial body within a reasonable time of entering the appeal.
Amendment No. 114B is based on a recommendation by Justice, which made a reference in its background notes to the case in the European Court of Human Rights of Aksoy v Turkey, where it was held that, although there was a genuine state of emergency, the fact that a person who had been detained was not brought before a judicial body within 14 days entitled that person to complain of a breach of human rights. It held that the period of 14 days was excessively long.
The focus of this amendment, therefore, is to ensure that the period before the suspected terrorist is brought before the commission is no more than seven days. The amendment tabled by the noble Lord, Lord Corbett—Amendment No. 114D—says that not only
Lord Corbett of Castle Vale: Would the noble Lord kindly do me the favour of hearing the argument before he pronounces on whether or not he likes my amendment?
Lord Goodhart: I have to explain why I am putting forward an amendment which is different from that of the noble Lord. Perhaps he would like to treat his amendment as being grouped with mine. He could then put his argument and I could come back to it after the Minister has spoken.
In ordinary criminal procedure there is often a lengthy period between somebody being charged and detained, and the time at which the trial is heard. Subject to what the noble Lord, Lord Corbett, has to say, in a considerable number of cases that would apply to the SIAC procedure as well. But it is important that the person who is in detention should be brought before the judicial body rapidly; that the judicial body should be able to give directions quickly. Obviously the hearing should be as soon as is reasonably practicable. In an exceptional case, where there was strong evidence that the detainee should not have been detained at all—clear evidence of misidentification or something of that kind—then no doubt the commission could even give directions to have a hearing on the spot.
Amendments of this kind are important and necessary if we are to avoid being in breach of the Human Rights Act, in respect of which the derogation does not itself apply. The fact that there has been a derogation authorising the detention does not relieve the authorities from the necessity of seeing that the detainee is brought before the relevant judicial body with all reasonable speed, as the Aksoy case makes clear. I beg to move.
Lord Corbett of Castle Vale: Just so there is no misunderstanding, I understand what the noble Lord, Lord Goodhart, means and agree with him. But my amendment is on an entirely different, though related, matter.
Baroness Buscombe: I rise simply to support Amendment No. 114B. We would like to hear the Minister's response and hope he will give cogent reasons if he is not minded to accept the amendment.
Lord Goldsmith: Amendment No. 114B would require SIAC to convene within seven days of the lodging of an appeal to give directions as to the hearing. There is nothing particularly objectionable in that. My point is that it should be for SIAC to determine its own timetable.
I take the point that the noble Lord, Lord Goodhart, makes: that there is a human rights obligation. I imagine that he has in mind Article 5(4) which would require that the lawfulness of detention
Once the Bill is passed there will be much for SIAC for to do. There will be bail applications—one of the matters provided for under the Bill—appeals against certification and appeals which will no doubt include separate direction hearings against immigration decisions.
While recognising the overriding obligations which would apply to SIAC as well as a public authority, it would not be right to impose an obligation to convene simply to give directions for a hearing. Of course, SIAC might decide that it wanted to do so but that would be for it to decide fully recognising the obligations, as I am sure they would, under Article 5(4). For that reason, I resist the amendment.
Lord Goodhart: I am sorry that the noble and learned Lord the Attorney-General is not prepared to accept the amendment. He plainly understands that if SIAC does not act speedily—I think that seven days is likely to be regarded as a maximum for the initial directions hearing—this country will undoubtedly face serious problems with the Human Rights Act and the European Convention on Human Rights.
Lord Goldsmith: If the noble Lord will kindly give way, having seen the appeal and the Secretary of State's reasons, SIAC may take the view that there is no need for a directions hearing. It may want to say that there shall be a full hearing in five or perhaps 10 days. To put on the face of the Bill an obligation that it should convene a directions hearing could impose an obligation on it which would simply add to its and others' burdens.
Lord Goodhart: I am grateful to the noble and learned Lord for that elucidation. He refers to going straight to a full hearing. It is necessary to deal with that very quickly. If the hearing is to be deferred for a matter of some weeks or even months, there must be an arrangement for bringing the detainee before the court. It is clear that a judicial body must be seized of the matter very quickly because that is plainly the case with criminal proceedings. In detention proceedings that is no less important.
I do not wish to press the matter. The point has been made. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Lyell): Before I call Amendment No. 114C, I must advise the Committee that if it is agreed to I shall not be able to call Amendment No. 114D.
Lord Dholakia moved Amendment No. 114C:
The noble Lord said: This is another amendment on certification and appeal. We suggest further safeguards against the substantial powers of the Home Secretary. We propose to include in the clause that the commission must cancel the certificate if,
The Lord Bishop of Portsmouth: Like the previous amendment, this amendment is about restraint and is to be welcomed. If it is not pressed, I hope that the conversations alluded to earlier between the noble Lord, Lord Dholakia, and the Minister will take place.
The removal of the word Xsuspicion" in Clause 25(2)(a) places the burden on the word Xbelief" which one hopes connotes a more positive approach. More importantly, the proposed paragraphs (b) and (d) make requirements on the Secretary of State which not only seem proper and just but will send out welcome signals to those of us who are in regular contact with asylum seekers.
The amendment meets the concerns of those like myself who believe that anti-terrorism legislation is right but are suspicious when it sometimes gives the impression of wanting to strain the existing rights of asylum seekers. In saying that, I echo the earlier intervention of the noble Lord, Lord Phillips. We are talking about suspected terrorists.
X( ) A suspected international terrorist who has appealed under subsection (1) shall, within 7 days of the appeal being lodged with the Commission, be brought before the Commission for the purpose of the Commission giving directions as to the hearing of the appeal."
Page 13, line 4, leave out subsection (2) and insert—
X(2) On an appeal the Commission must cancel the certificate if—
(a) it considers there are insufficient grounds for a belief of the kind referred to in section 21(1)(a) or (b);
(b) it considers that the issuing of the certificate was not in accordance with the law, or that the Secretary of State should have exercised his discretion differently;
(c) it considers that for some other reason the certificate should not have been issued; or
(d) the Secretary of State has not taken all reasonable steps to avoid the need for detention."
Xit considers that the issuing of the certificate was not in accordance with the law, or that the Secretary of State should have exercised his discretion differently",
and if,
Xthe Secretary of State has not taken all reasonable steps to avoid the need for detention".
I beg to move.
7.15 p.m.
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