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Lord Avebury: My Lords, I still fail to understand why the noble Baroness, knowing that there are exceptions under the returning residents scheme, is unwilling to grant those people rights of appeal. She still did not say whether the example I gave in Committee, and repeated today, was one where the individuals concerned should be denied rights, or whether they were so denied because the Bill was not in force. There will always be a small number of people who for good reasons are not able to comply with the conditions for returning residents, and in particular will have been away from this country for more than two years generally in circumstances of great family tragedy; for example, the couple whose son was killed.
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I therefore argue that it is inhuman to deprive people who have already suffered intensely as a result of, say, a family bereavement and say, "You have forfeited your right of appeal through no fault of your own". I simply cannot understand why the noble Baroness is so resistant to that amendment.
I accept it is possible to do as she says under the regulations she quoted, but I still cannot understand why, when there is the opportunity to make provision in primary legislation to retain people's rights, we should take away the rights in the Bill and then restore them by secondary legislation. But obviously we are not going to win this argument so, for the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 to 10 not moved.]
Lord Dholakia moved Amendment No. 11:
The noble Lord said: My Lords, the purpose of the amendment is to maintain the status quo in national security appeals whereby both risk of breach of human rights on return and the national security case are heard before the applicant leaves the UK.
The Immigration Law Practitioners' Association has done a good deal of work and I am grateful for the information and briefing it has supplied to us. These proposals for a variety of measures relating to terrorism were published over the summer months. Many are now part of the Terrorism Bill. On 15 September, the Home Secretary set out draft clauses that would be introduced into this Bill.
It is right that we respond to public concern after the events of 7 July. However, we need to work out the implication of what is proposed in this legislation. It should be emphasised that all the provisions, with the exception of Clause 52, go wider than any current definition of terrorism and cover broad questions of national security and "the public good". They fall to be tested, therefore, not only on the question of whether they are reasonable ways to deal with cases where people pose a threat to national security but also with those convicted or merely suspected of other crimes.
A large number of organisations working in this field are of the view that the case for new legislation in this area has not been made and that the new provisions fail to respect rights and civil liberties. Existing immigration law contains ample powers to deal with those who pose a threat to national security. The debate in Grand Committee was characterised by the Minister sketching extreme cases for which more than adequate provision is already made under existing legislation; and then seeking to use those to contend for an extension of existing powers. All arguments about better provision in the Terrorism Bill are relevant but the clauses introduce a few new problems of their own.
Let me spell those out. Clause 7 provides that if a case raises national security concerns the part of the appeal dealing with whether the appellant's human
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rights will be breached on return will be dealt with before removal and the part which deals with national security will be dealt with after removal as an out-of-country appeal. This creates a two-stop appeal out of a one-stop appeal. It is wholly at variance with the Government's approach in other parts of the appeal system that we discussed only recently.
In Committee, the Minister said that the new clause is designed to streamline the process of appeals against deportation orders in national security cases. However, it streamlines nothing: it creates a two-stop appeal process, as the Minister acknowledged in Grand Committee. She said:
"Our view is that SIAC is well and best placed to deal with what is, as the noble Lord said, the potential for a two-part appeal".—[ Official Report, 11/1/06; GC 99]
In Committee in the Commons, the Minister of State reaffirmed and supported statements by the noble Lord, Lord Filkin, during the passage of the Nationality, Immigration and Asylum Act 2002: that the person is sent back and only then the question of whether they are a risk to the safety of the United Kingdom is examined; there are powers to prosecute people here, and powers to extradite them. The approach proposed by Clause 7 is, therefore, irresponsible. It may put the applicant at risk. In some cases the risk on return is born from the national security case against the appellant. That the British Government suspect persons of being a threat to national security, whether or not the suspicion is well founded, may be what turns their own government against them. If the British Government provided only details of the national security case once the appellant was back at home, this could put him or her at risk of torture. Those points were all put to the Minister in Grand Committee.
SIAC cannot take into account what it does not know. If it does not know what is the national security case against the appellant, it cannot look at the relevance of this to the risk of torture or other flagrant breaches of human rights on return at the in-country stage of the appeal. One result of Clause 7 is likely to be that people are returned and then tortured. Another will be attempts to raise risk through judicial review challenges before removal.
In other cases, where the national security case is known, it is likely to be rehearsed in detail as part of the human rights case pre-removal; and yet these points cannot be decided. Instead, the evidence must all be considered again at an out-of-country appeal post-removal involving repetition and wasting resources. It will result in the United Kingdom exporting risk. The Government have accepted that this is an effective way of tackling the threat from international terrorism. In practice, it would be difficult or impossible to separate the human rights and national security aspects of the appeal—for example, the threat to the appellant could derive from the national security case against him or her; that is, the fact that he or she has been labelled as a terrorist. This proposal is inconsistent with the general aim of a single appeal. It requires at least two appeals which would often involve the same question and evidence.
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The clause would result in unfairness for the appellant, who, having been deported, would not be present in the United Kingdom while the national security case against him or her is heard. I beg to move.
Lord Avebury: My Lords, we had an extensive discussion on Clause 7 in Grand Committee and since then we have had further exchanges with the Minister and her officials, for which we are very grateful. But, as the Minister knows, we were not convinced by the argument for a special process to be applied to a handful of cases where a person is deported on national security grounds. As my noble friend has said, a proposal in these cases alone is that there is to be a two-stage process, in which those parts of the appeal against deportation concerning the possible breach of a person's human rights on his return will be heard before removal, while the part that deals with national security is to be heard after the person has already been deported.
As we have already shown, the very fact that an appellant is considered to be a threat to our national security may trigger the risk of persecution in the country of origin, irrespective of whether the suspicions held against him are well founded. That is why we say that, contrary to the assurance given by the noble Lord, Lord Filkin, we shall not use these powers to export risk; that is precisely what the clause does, as my noble friend has just explained. SIAC is never going to be able to consider the possibility that the national security case might have a bearing on the likelihood that a person's human rights would be violated, since this is not considered at the same time as a human rights case—as we say it should be.
I wonder if we should distinguish between cases where a person has been convicted of a terrorist offence and those where the certification by the Secretary of State is based on evidence which is not in the public domain. Where a person has been convicted, and the Secretary of State certifies that the decision to make a deportation order in respect of him has been taken on grounds of national security, there cannot possibly be any argument that would speed up removal, as the Minister claimed, because the evidence on national security will already have been heard in the criminal case. The only additional matter to be argued, if the two aspects of the appeal are to be dealt with together by SIAC, is whether the evidence itself could have a bearing on the likelihood that a person's human rights would be violated in his country of origin.
Either that is a trivial point, which is to be disposed of in a few minutes, in which case it has little, if any, effect on the speediness of the removal, or it is a complex matter requiring a great deal of extra time in the SIAC, which means it is essential in the interests of fairness for the two parts of the case to be connected. I would like to know which of those two the Minister prefers.
In the case where the certificate follows a criminal conviction, it may or may not be reasonably clear from the evidence whether the national security case will affect the probability of the person's human rights being abused. But where the certificate is based on
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evidence which is not to be presented to SIAC until after the person's removal, it is impossible to say whether he is going to be put at risk. Even then, because the SIAC procedure involves the delivery of closed material to the special advocate, who is prohibited from communicating either with the appellant or his legal advisers without SIAC's permission and because the appellant and his lawyers are not allowed to be present at any closed session, it may be very difficult to assess the effect that the hearing might have on the authorities in the country of origin.
However, there is a strong likelihood that the knowledge that an appeal has been made to SIAC would itself cause serious problems for the appellant, and increase the likelihood that he would be a target for human rights abuse. He might well decide not to pursue his right to an out-of-country appeal even though he believes the evidence against him is false or flimsy in case, by the very act of pursuing the appeal, he draws the attention of hostile authority to himself.
5 pm
In response to our arguments in Committee, the Minister gave details of a case that dealt with an entirely different issue. She ultimately acknowledged that it was irrelevant, and then said merely that SIAC would take our concerns into its considerations. That is the whole point; SIAC cannot take national security aspects into account and has no knowledge of its possible relevance to the risk of torture or other serious breaches of human rights at the first hearing, before removal, while to revisit the relevance at the second hearing would be too late. Therefore, one outcome of split appeals is that the appellants may be returned and then tortured. Another is that they will try to raise questions of risk by judicial review.
We know that the Government are hoping to ward off objections to the deportation of the person suspected of being a security risk by entering into memoranda of understanding with the states concerned, reinforced by independent monitoring of the undertakings given not to torture or ill-treat returnees. In Jordan, the first and only country where monitors have been selected so far, the task has been assigned to the al-Adeleh human rights centre—an NGO formed as recently as September 2003 which is almost invisible on the web while proclaiming that its strategy is to avoid confrontation with the Government and security apparatus. The terms of reference for its monitoring of returns have not yet been agreed.
Other countries with which similar agreements are contemplated, such as Egypt, Libya, Syria and, most important of all, Algeria, have not even got that far. Assuming that they will all agree to MoUs like the one agreed with Jordan in August 2005—and that monitoring arrangements for the treatment of returnees can be made with NGOs which inspire confidence—what happens if the returned person is then detained? He is entitled under the MoU to have
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access to the monitor and to be visited privately by him at least once a fortnight while in custody. The monitor is expected to report back to the UK on the conditions in which the detainee is being held.
In the opinion of Amnesty International, the UK's reliance on diplomatic assurances while seeking to expel people to countries where they risk torture or other ill-treatment would violate its obligations under international law. Diplomatic assurances are inherently unreliable and, in practice, ineffective. They cannot relieve a state of its obligation not to forcibly return a person to a country where they would be at such risk. To reinforce that opinion, the only sanction for a breach of the MoU is for us to give the receiving state six months' notice of withdrawal from the agreement.
Algeria is the country to which the largest number of people would be deported if the Government manage to complete these arrangements. It is a country where, according to Amnesty, torture is still used regularly against detainees. Algeria has not signed the optional protocol to the convention against torture, which provides a right of individual petition to the committee against torture; neither has any other state that is being considered for the MoU process. Algeria has blocked visits by the UN special rapporteur on torture for the past 10 years.
We happen to know the Prime Minister's attitude to effective safeguards and compliance with international obligations not to send people back to countries where they may be at risk of torture or ill-treatment. That is from his intervention in the case of Hani El Sayyed Elsebai Youssef, an Egyptian whose application for asylum was not considered by the Secretary of State. That was on the grounds that he was a terrorist, though not charged with any criminal offence, and therefore excluded by Article 1a of the convention. No doubt we shall have a few words to say on that later.
That case was important as it was the first time that we had explored the idea of seeking undertakings from a state to which it was proposed to return a high-profile terrorist suspect. A draft was produced in March 1999 and the initial negative reaction of the Egyptian authorities to our proposals was reported to No. 10 Downing Street at the beginning of April. Across the top of the letter, the Prime Minister wrote "Get them back", and next to the paragraph setting out the assurances that were objected to by the Egyptian interior minister, he wrote that they were a bit much and asked why we needed all of those things.
It is against that background that we should consider Clause 7, which allows for the deportation of people who are considered to be a risk to national security back to countries where torture is practised, subject to unenforceable agreements that they will not be tortured. We really do not care what happens to them—or, at any rate, the Prime Minister does not—but we need a veneer of legitimacy to ward off challenges in the courts.
Mr Justice Field considered that if the Egyptians had given the undertakings sought in the Youssef case, there would have been a reasonable chance that an
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English court would not have quashed the removal. The Government took the hint and proceeded down on the undertakings route, but Mr Justice Field did not have to consider the likelihood that the Egyptian Government would honour the assurances sought or that any effective remedy would be available if they were breached.
No doubt that was why he was cautious in his assessment of what the courts would do in those circumstances. I would not be too confident that they would accept arrangements of the kind being made in the case of Jordan, but Parliament should consider the whole scheme, including the contract with al-Adeleh, with the advice of experts, before handing these powers to a Government who display such careless disregard for the protection from torture of individuals whom we may have every reason to fear and dislike. The convention against torture applies to suspected terrorists just as much as to heroes of resistance and to unjust and tyrannical rulers.
Does that mean that we would never be able to get rid of the persons to whom the clause applies? No, it does not. It means that our efforts should be directed to persuading those countries to abandon the practice of torture; to honour their obligations under the convention against torture; to sign the optional protocol; and to issue invitations to the United Nations High Commissioner for Human Rights, including the special rapporteur on torture. In the mean time, the Government should agree to take the clause away. I beg to move.
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