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Baroness Buscombe: I, too, welcome the amendment. It appears eminently sensible. As the right reverend Prelate says, it sends out all the right signals and in that sense would be reassuring.
Lord Goldsmith: Amendment No. 114C is concerned with the basis upon which SIAC can cancel on appeal a certificate issued under Clause 21 that a person is a suspected international terrorist. Part of it relates back to Amendment No. 114A which we have already discussed. I shall indicate that in a moment.
Perhaps I may indicate what the appeal to SIAC is about. As is clear from Clause 25, it is about the certificate. The issue for SIAC is about the certificate. The word Xreasonable" was included in another place in Clause 25(2)(a). The reasonable test was placed on the Secretary of State when issuing a certificate under Clause 21. That is why Clause 25(2)(a) states that on an appeal the commission must cancel the certificate if,
- Xit considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b)".
The amendment proposes a somewhat different test. I take it in two stages. First, paragraph (d) of the amendment relates back to the points addressed in Amendment No. 114A by my noble friend the Minister. That deals with the question whether the Secretary of State has taken all reasonable steps to avoid the need for detention. He indicated why the Government take the view that it is not right on the face of the Bill to impose that obligation on the Secretary of State notwithstanding that those steps will be taken. He indicated the difficulty, for example, of giving SIAC the obligation to decide that a criminal prosecution should take place even though the prosecuting authorities consider it inappropriate to do so—for example, because the evidence is not there. To include the proposed paragraph (d) would give rise to all the difficulties to which my noble friend referred.
Paragraphs (a) to (c) might be seen as a re-working of the two provisions contained at present in Clause 25(2)(a) and (b) which state:
- XOn an appeal the Commission must cancel the certificate if . . . it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to . . . or it considers that for some other reason the certificate should not have been issued".
The amendment seeks to substitute the expression,
- Xinsufficient grounds for a belief of the kind referred to",
- Xno reasonable grounds for a belief".
I recognise that the words in paragraph (b) have been drawn from Section 4 of the Special Immigration Appeals Act. That is the section which deals with the determination of appeals by SIAC under the 1997 Act. Of course I understand the proposal to replicate the provision here. However, I have already suggested that the wording that has been chosen by the draftsmen of reasonableness in subsection (2)(a) of Clause 25 tracks the wording in subsection (1) of Clause 21. That is the wording which best fits the structure of the Bill.
There are some differences between the matters which SIAC will consider under the Bill and those that it would consider under an ordinary appeal. I have emphasised that under these powers SIAC is considering the certificate. Therefore, I suggest it is entirely appropriate that the test that it applies should mirror the test which the Secretary of State has to apply.
I mention one other matter which may be relevant to this discussion and could be relevant to the discussion we shall have on Amendment No. 119. Subsection (2)(b) of Clause 25 provides that SIAC is to cancel the certificate—again I emphasise the word Xcertificate"—where it considers that for some other reason the certificate should not have been issued. What we had in mind in putting that forward was to ensure that SIAC would have the powers available in a traditional judicial review to cancel the certificate, for example, on procedural irregularity grounds. The provision is not intended to cover the wider issues which are mentioned, for example, in paragraph (d) of the noble Lord's amendment—I have already dealt with that—because those are not matters which would arise on the consideration of the certificate.
I hope that with that explanation of why the words which have been chosen in subsection (2)(a) of Clause 25—the Committee may feel that it is a strong test:
- Xit considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b)"—
Lord Dholakia: I thank the Minister and am grateful for the explanation he has offered. I shall certainly discuss the matter with the people who suggested the amendment to us and, if necessary, I may discuss the matter further with the Minister. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Corbett of Castle Vale moved Amendment No. 114D:
- Page 13, line 4, after Xappeal" insert X, which shall be heard within seven days,"
The noble Lord said: I remind the Committee that this amendment also concerns an appeal against certification of someone as an international terrorist who faces, as a result of that—the Minister was kind enough to make that clear—indefinite imprisonment. I say in passing that I consider the word Xdetention" a euphemism; we are going to lock someone up. I understand the reasons for that, but none the less we should be absolutely clear what we are talking about.
On my reading, this part of the Bill sets no time limit for the hearing of such an appeal against certification. I share the concerns of the Bar Council and the Criminal Bar Association that that may run the risk of being a breach of Article 5(3) of the European Convention on Human Rights. In any event, whether
or not that is the case, given that this is an appeal against indefinite imprisonment by a person who has neither been formally charged nor tried and convicted, I think it is even more important that there is the earliest possible hearing by SIAC of an appeal when it is lodged and that a time limit should be imposed.I understand the point that the noble Lord, Lord Goodhart, made in connection with his amendment on this matter; that is, that it may appear that we seek to rush things, if I can put it that way. However, it is the person who is imprisoned who is responsible for the timing as regards lodging the appeal. He or she would take all steps with his or her legal advisers properly to prepare that appeal so that there need be no delay at that end. SIAC may have already carried out one of the six-monthly reviews, so it will be familiar with the arguments of the Home Secretary for reaching the decision to sign the certificate. Any argument that the provision would not assist the imprisoned person I do not think can be substantiated.
A further argument in favour of the measure is one the noble and learned Lord the Attorney-General made clear earlier today; that is, that a foreign national who has been charged, tried, convicted, sentenced and has completed that sentence and would normally then be deported but who cannot be deported could then be caught by the provisions of Clause 21. In other words, having been through the courts and served the sentence imposed, because it is the opinion of the Home Secretary that that person still represents a real and present danger, he could then be imprisoned indefinitely beyond the sentence. That is another strong argument for imposing a time limit by which SIAC must hear these appeals. I know that the noble and learned Lord the Attorney-General will take this matter seriously, but I really do not feel that it is safe in these serious circumstances where we have taken people's liberty away from them for reasons we all understand that it should be left simply to SIAC to decide whether it will hear an appeal in a matter of days, weeks or, if it is the summer holidays, months. I beg to move.
Lord Avebury: I was going to ask the noble Lord the following question before he sat down, but perhaps I can address it to the Minister. In the particular case which the noble Lord discussed towards the end of his remarks where a person has been tried, convicted and sentenced, has served his sentence and then at the end of that process the Secretary of State issues a certificate and the detention is prolonged, there is no excuse whatsoever for any delay in a SIAC hearing, because the Secretary of State will already have taken into consideration before the end of the sentence the fact that the person represents a threat to the security of the country and he will have decided to issue a certificate. He may not even necessarily wait until the end of the sentence. After all, in cases where a person reaches the end of a sentence and a deportation notice is issued, the prisoner knows that before he gets to the end of the sentence. However, in the past—I do not know whether this is still the case—the deportation notices were not issued sufficiently far in advance of the
person reaching the end of his sentence for him to consult his legal advisers and take the necessary action, if he decided to do so, to resist the deportation notice.I am quite certain that the Secretary of State, knowing that that person is coming to the end of his sentence, will have reviewed the matter and will have decided to issue a certificate. There is no conceivable reason why he should not do so before the end of the sentence, why SIAC should not then take the matter promptly under its consideration and why the hearing should not be held as soon as possible after the end of the sentence. That is a case in which the seven days proposed by my noble friend would certainly be very reasonable for a substantive hearing and not only for the preliminary hearing on directions.
I hope that the noble and learned Lord will assure us that in such cases SIAC will, indeed, do as I suggest and that there will be no delay whatever between the end of a person's sentence and his appeal being heard before the commission.
7.30 p.m.
Lord Goldsmith: I assure my noble friend Lord Corbett that I take these issues seriously. I take very seriously our obligations under the European convention. That is why the Government are opposed to the proposal put forward by the Benches opposite that, instead of taking this course, we should send people back to places where they could be killed or subjected to torture or inhuman or degrading treatment. We also take very seriously the obligation under Article 5 of the convention that there should be a speedy determination.
I believe that I can make that point best by responding to the proposition of the noble Lord, Lord Avebury. He asked whether we could assure the Committee that SIAC would act in a particular way. The whole point of having an independent court is that it is for the independent court to act. I have no doubt that SIAC would want, and in any event is obliged, to act in accordance with the European convention. It is a public authority.
With respect, I believe that it would be wrong to impose an obligation on SIAC to hear an appeal within seven days, apparently even if the applicant was not ready for it. That is the effect of the obligation as it would be amended. That may be totally contrary to the interests of the applicant. The applicant may want time to ensure that he, his representative and the special advocate are able to put forward properly the strongest case against the issuing of a certificate. Therefore, I suggest that, while the reasons for proposing it are entirely understandable, imposing what appears to be a Xquick into court" to obtain a determination may in fact have the opposite effect.
Perhaps I may make two other points. I understand why my noble friend does not like the language which is used. However, I remind him of two important facts. First, there is a sunset clause. That means that there is a finite end to the power, quite apart from the fact that the power must return to Parliament after 15 months and then each year for affirmative resolution.
Constant reviews are provided automatically under the Bill. But, above all, the big difference between this proposal and imprisonment is that, if the person detained wishes to leave and can find somewhere to go which will take him, he is free to go. That is not the case in relation to imprisonment, and it is a very important distinction. It is only because we cannot deport such people that we must turn to this alternative proposal.Perhaps I may also pick up on another point because it has been referred to several times. Earlier, I responded to a question from the noble Lord, Lord Avebury, about the position of someone who had been a convicted terrorist. I hope that I responded frankly and openly about the theory of what would apply under the Bill. However, as to the practicality of it, I know of no cases where this is presently envisaged. If someone is convicted as an international terrorist, the strong likelihood is that the sentence will be long. But that will be for the courts to determine.
In practice, a situation may arise in which, after a person has been served, evidence will still be made available. I do not know whether this Bill, when it becomes an Act, will still be in force at that stage. If it is and if there is still evidence persuading not only the Secretary of State, if I may pick up on what my noble friend said, but also SIAC—the case would be subject to a SIAC review—that that person remained a threat to national security and retained links to international terrorism, then in theory that could apply.
I add one further point. It is, of course, possible that the criminal proceedings could have had excluded from them on the grounds that they were too sensitive to be relied upon in criminal proceedings sensitive information which, if it had been adduced, could have led to more serious charges. Therefore, if I understood it correctly, it is not, as it were, the double jeopardy point. It may be quite different information which has not formed part of a sentence imposed by the court. However, I was responding to a theoretical position. I hope that the reason for these powers has been clearly expressed.
However, with regard to the amendment, the requirement for SIAC to hear an appeal within seven days places on it an obligation which may be disadvantageous to the applicant. It is unnecessary because Article 5.4 of the European convention places such an obligation, and the speed of the hearing will be determined in all the circumstances of the case. There are cases where a longer period of time will be entirely appropriate. Previously I mentioned that it would be a matter of days. There may well be cases where a longer period than that would be entirely appropriate. But it should be left to SIAC to determine. We should not impose a time limit upon it. I hope that my noble friend will not press his amendment.
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