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Lord Dholakia moved Amendment No. 116:

The noble Lord said: In moving Amendment No. 116, I shall speak also to Amendments Nos. 117 and 118, with which it is grouped. The amendments seek to safeguard interests. The longer the detention, the more it is important that the review takes place as soon as possible. We are therefore suggesting—in all three amendments—that the review should be within a period of three months. I beg to move.

Lord Rooker: I hope that the announcement I made earlier will meet the noble Lord's desires. I indicated that after the first six months we will go to a three month review. We shall be bringing forward amendments at Report stage to that effect.

Lord Dholakia: I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 117 to 119 not moved.]

Clause 26 agreed to.

Clause 27 [Appeal and review: supplementary]:

Lord Goodhart moved Amendment No. 120:

    Page 14, line 11, at end insert—

X( ) The Commission shall give reasons in writing for a decision on an appeal or review to which subsection (1) applies.
( ) Rules under section 5 of the Special Immigration Appeals Commission Act 1997 (c. 68) (general procedure) may provide for all or part of the reasons to be withheld from disclosure to persons other than a person appointed under section 6 of that to represent the interests of the appellant or of the person who is the subject of the review."

The noble Lord said: To some extent, this is a probing amendment which seeks to ensure that the commission is required to give its reasons for a decision in a form which will make it possible for the Court of Appeal to review them in the exercise of a right of appeal on a point of law.

The commission's reasons must be disclosed. We hope that the special representative appointed under the 1997 Act will be given powers to appear in the Court of Appeal, if necessary. Where, for security reasons, it is not practicable to disclose to the detainee the full reasons why an appeal has been dismissed, at

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least those reasons can be seen by the special representative, who will be able to make use of them in an appeal to the Court of Appeal. I beg to move.

Baroness Buscombe: I should also like to speak to this group of amendments, in particular Amendment No. 123.

Lord Goldsmith: We are dealing with Amendment No. 120.

Baroness Buscombe: I am sorry.

Lord Goldsmith: The Special Immigration Appeals Commission procedure rules, to which I referred in a previous debate, provide under rule 23 that the commission must record its determination and, to the extent that it is possible to do so without disclosing information contrary to public interests, the reasons for it. That would apply to the determination by SIAC under this procedure because the rules are incorporated under Clause 27(6) of the Bill.

In those circumstances, the noble Lord may feel, perhaps, that his concern—which I entirely understand—is sufficiently met. If there is an aspect of his concern which is not met by the incorporation of those rules, I shall be happy to look at the matter further.

Lord Goodhart: My concerns are not entirely met. The problem is that the present rules allow the commission not to disclose its reasons in full because of security reasons. It would be better if the commission were required to disclose its reasons in full, because without that the Court of Appeal may not properly be able to exercise its powers of reviewing on a point of law. The security interest should be protected by allowing the reasons, or part of the reasons, to be withheld from the detainee and shown only to the special representative. The special representative can then conduct the appeal—which would no doubt be heard in camera in the Court of Appeal— and would have full access to the whole of the reasons of the commission.

Lord Goldsmith: I am grateful to the noble Lord for clarifying that point. As I have indicated, I am happy to consider it further but I am not in a position to say any more at this stage. I hope that that is of some help to the noble Lord.

Lord Goodhart: I think that we have taken this matter as far as we can go. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Baroness Hooper): I should tell the Committee that if Amendment No. 121 is agreed to, Amendment No. 122 will be pre-empted.

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Lord Thomas of Gresford moved Amendment No. 121:

    Page 14, line 37, leave out from Xcertificate" to end of line 38 and insert—

X(a) on grounds of change of circumstances, or
(b) where the initial certificate was cancelled because of a technical irregularity."

The noble Lord said: This amendment relates to subsection (9) of Clause 27:

    XCancellation by the Commission of a certificate issued under section 21 shall not prevent the Secretary of state from issuing another certificate, whether on the grounds of a change of circumstance or otherwise".

Amendment No. 122 seeks to leave out Xor otherwise". It is the very least that can be done. The phrase is very wide. It could mean that the commission might come to a particular conclusion and the next day for any reason the Secretary of State could issue another certificate within the framework of his responsibilities.

Amendment No. 121 attempts to make some sense out of the subsection. It proposes that the Secretary of State should be entitled to issue another certificate,

    Xon grounds of change of circumstances, or . . . where the initial certificate was cancelled because of a technical irregularity".

Where the commission simply disagrees with the exercise by the Secretary of State of his power to issue a certificate, it seems to us that the issuing of another certificate immediately, on any grounds at all, is inappropriate. I beg to move.

Baroness Buscombe: I support Amendments Nos. 121 and 122.

I want also to speak briefly to Amendment No. 123. We agree with the overall gist of the amendment; namely, that the subsection is too broadly drawn. We believe that the circumstances in which a fresh certificate can be issued must be narrowly defined.

In the event of a certificate being cancelled it should not be reissued without very good reason; and it should not be reissued without the support of fresh evidence which was not, for whatever reason, available when the original certificate was issued. I commend Amendment No. 123 to the Committee.

Lord Rooker: These three amendments deal with a matter that was raised by the Joint Committee on Human Rights. We fully understand the wish of Members of the Committee to ensure that the Bill does not give the Secretary of State arbitrary power to reissue a Clause 21 certificate in defiance of a decision by SIAC to cancel the first certificate. We have given careful thought to whether we can find an alternative formulation to the one in Clause 27(9). We have not been able to find one.

There is a variety of circumstances in which it may be appropriate for the Secretary of State to make a fresh certificate after SIAC has cancelled the original. Perhaps I may give a few examples which I hope will help the Committee in case the matter receives further consideration.

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First, if there is a change in circumstances and matters have moved on from the time when the original certificate was made, there may be new reasons for considering that a person now qualifies as a suspected international terrorist, notwithstanding SIAC's decision.

Secondly, the same basic case against an individual may exist, but new evidence may come to light which substantiates a previous suspicion or belief. For example, there may have been a belief that a person was a member of a proscribed organisation but SIAC may have concluded that there were no reasonable grounds for that belief. New information may subsequently emerge which strongly supports the original contention, and that may justify a fresh certificate.

Thirdly, there are technical matters where the certificate was cancelled for procedural shortcomings. Fourthly, a higher court might reverse a decision of SIAC, which would mean a fresh certificate being issued unless that higher court resurrected the certificate itself.

None of the amendments would catch all those possible scenarios. One solution might be to adopt an amendment that covered all of them, but if we try to create an exhaustive list there is always a risk that something will be overlooked. That is why we do not favour that approach.

Another way would be to delete subsection (9) and argue that the Secretary of State would be able to issue a fresh certificate in appropriate cases without the need for express provision. However, that also carries risks. There are examples in other Acts of Parliament in which mention is made that certain actions do not prejudice the future use of the same power. Paragraph 21 of Schedule 2 to the Immigration Act 1971 relating to detention is one such instance. If the Bill is silent on the matter, it is not certain what the consequences would be. That is why we prefer to have the provision in the Bill.

I confirm that our intention is that the Secretary of State will issue a fresh certificate only if it is justified. We rely heavily on SIAC, which would rightly take a dim view of any Secretary of State who seemed to be ignoring its decisions. I am sure that it would cancel any inappropriately made future certificates in short order. Furthermore, it might well be a breach of Article 5(4) of the European Convention on Human Rights, and perhaps also of Articles 6 and 13, for a Secretary of State to adopt such a course.

I fully appreciate that the matter was considered by the Human Rights Committee. We have genuinely looked to see whether we can meet the concerns raised, but for the reasons that I have given I hope that the noble Lord and the noble Baroness will be satisfied that we are acting honourably and will not press their amendments.

9.15 p.m.

The Earl of Onslow: This sounds terribly like double jeopardy. There is somebody whom we do not quite have enough evidence to lock up, but we think that we ought to lock him up anyway. Along comes SIAC and says that we should let him go. The Minister then says that he has a little more evidence, so the Government

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lock the man up anyway. That is exactly what is described and it sounds to me like double jeopardy. I thought that once a man had been acquitted it did not matter what he did—he should be acquitted and that was that. The more that one hears of the Bill, the more dangerously it goes to the heart of our liberties. I know that we are talking about only 10 or so people and about a horrendous amount of damage done by terrorism, but we must be very careful about our ancient liberties because they are more important than anything else. That was double jeopardy.

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