Select Committee on Home Affairs Minutes of Evidence

Examination of witnesses (Questions 200 - 219)



  200. I understand that, and that is a very detailed explanation of what is in the Bill. But the question then arises why have you taken that power away from SIAC to look at the two together, both the national security and the asylum? Why is that necessary?
  (Mr Walsh) SIAC will still be able to look at the national security aspect, and it will also be looking at the asylum claim. We are not saying that a person cannot apply for asylum. What we are saying is that the 1951 Convention already has provisions in it which say that if someone comes within the scope of article 1(F), then they are not a refugee, and to some extent this is just making more clear that that provision exists and relying on it. So it is not the case under this provision that the Secretary of State is not looking at the asylum claim.

  201. It is not the Secretary of State; it is SIAC.
  (Mr Walsh) If SIAC comes to the view that this person is to be excluded, under the terms of the 1951 Convention, that means that they cannot be a refugee. To that extent, you could argue that looking at whether or not they have a well founded fear of persecution for the purpose of the 1951 Convention is not a necessary thing to do. This provision makes that clear.

  202. You are saying that the position that we have had up until now, where SIAC can have the two, national security and asylum claims in parallel, was not in reality what should have been happening?
  (Beverley Hughes) I think it made the situation less clear in terms of those circumstances in which we had concerns about a person's behaviour on a national security basis. It makes it less clear what our course of action and responsibilities to that person are if we also consider at the same time the asylum claim. What the clarification of that process does is to say that if somebody is excluded by Article 1(f) or 33(2) from the refugee status the process that we are setting forward in the Bill, in terms of consequences of that assessment being confirmed by SIAC, is a valid one and the water cannot be muddied by an asylum claim.

  203. That is the key.
  (Beverley Hughes) It is clarity really.

Mr Prosser

  204. If we go back before 11 September, outwith the immediate security problems, what representations have been made to ministers and departments from immigration officials or Special Branch, MI5, seeking the sort of changes which we have just been discussing with regard to detention or deportation?
  (Beverley Hughes) In a sense, we have been testing out in a small way anyway since the Special Immigration Appeals Commission was established in 1998 a number of cases which deal with the same kind of issues. There have been through that process at the moment only three cases. In two of those cases where individuals entered the country who were fairly well known to be involved in terrorist activities, they entered the country clandestinely. As a result of those two people going through the SIAC process, we reached the dilemma that I outlined at a very early stage, in which assurances from the country to which we wanted to deport them were not accepted as satisfactory by SIAC, so those two people had to be released back into this country and are still here. It is partly 11 September; it is also partly the result of those experiences that raises the valid question: is it right, when we reach that point when we do have people about whom we are concerned, that the only option available to us is to release them back into the community? It is as a result of some of those cases that we have concluded that that is not satisfactory.

  205. From the evidence we have heard from all the parties, I have considerable sympathy with the new changes in this regard, but what is the danger of the government being open to the charge that it is using 11 September as a vehicle to put through those changes which it had in mind all the time? Secondly, if that is anything approaching a valid charge, how temporary in actuality will the new powers be?
  (Beverley Hughes) These particular proposals that we are focused on at the moment as part of the Bill are partly a result of experiences anyway through the SIAC process, but the timing in terms of bringing them forward obviously is a reflection of the fact that we did see a step change of some degree in relation to the events of 11 September and the methods that terrorists are willing to use. Creating mass casualties in a no warning suicide event such as that does mean that the need for us to be able to contain people who are a threat, the need for a much more intelligence based approach to protection and defence, is obviously very much heightened by those events. That is a combination of two things. It is certainly not the case that we are trying to do things we wanted to do anyway. There is a clear link back to 11 September and what that has taught us about the ways in which terrorists will now be able to operate and how we must respond to that. In terms of the timescale, we regard this as a serious power. We have made provision in the Bill for it to be temporary and we have enabled Parliament to take the decision on how long the international circumstances are such that we still need to keep it.


  206. How long do you envisage someone could remain in prison without trial under this Bill?
  (Beverley Hughes) That is difficult to hypothesise about. There is a mechanism for review every six months. There is not a provision in the Bill for a maximum number of reviews. Alongside the fact that I have said we envisage the powers being temporary and related to the international situation, there will also clearly be a time when this power does not exist and therefore anybody detained will be released because the power to detain them will not exist. I am not trying to dodge this question.

  207. I admire your confidence that there will clearly be a time when this power does not exist. History tells us that temporary measures have a way of becoming permanent.
  (Beverley Hughes) That is a matter for Parliament to determine in the future. It is not something I can predict or hypothesise about now. It is difficult to answer your question precisely and I am not trying to hedge it. It is simply difficult to know how events are going to evolve over the next one or two years or more and therefore how long we will have the power in place.

  208. It is theoretically possible for someone to remain in jail for five or ten years?
  (Beverley Hughes) In so far as we cannot predict now how long we will Parliament will keep the power, it is theoretically possible in terms of the course of the Bill but it is not something that we envisage.

Mrs Dean

  209. Could you explain why it is desirable to remove the possibility of judicial review from SIAC decisions?
  (Beverley Hughes) We regard SIAC itself as a judicial examination. I have already outlined the membership of the Commission that will oversee and examine the evidence that si available to the Secretary of State in individual cases. The process itself builds in that judicial examination. To provide for yet another layer of judicial examination we feel is unnecessary and delays the process. People will have a right of appeal on a point of law to the Court of Appeal and, if they are given leave, onto the High Court. We think that the proposals themselves provide for sufficient judicial oversight both of the evidence and of the way the law is being applied and it does not need another layer.

  210. Can you give us examples of problems that have arisen because of the current right to judicial review in SIAC decisions?
  (Beverley Hughes) Two things: the delay in the process and the evidence available to SIAC and to the Secretary of State is not always evidence that can be made available in an open court. This is part of a wider attempt to streamline related processes which we are not dealing with in this Bill but we will be dealing with it in a later Bill in terms of extradition and to make those processes consistent we do not want to have unreasonable opportunities for people to extend these processes generally. We do want to make sure that there is inbuilt judicial examination and we think we have sufficient in the proposals as we have outlined them for this particular power.

  211. How many applications for judicial review have been made with SIAC or if there are not examples is it a matter of your anticipating there would be in the future?
  (Mr Walsh) There have not been any judicial review changes to SIAC decisions so far. There have only currently been three cases before SIAC and we would expect, for a number of reasons, many more decisions of SIAC in the future both because of the review process meaning they will have quite a few decisions to take and because the numbers concerned might grow somewhat. In that sense, it is a preventative measure in the expectation that it might happen. There is already a right of appeal to the Court of Appeal and then to the House of Lords. There is a statutory appeal provided for and this measure puts beyond doubt that that is the route that should be taken. Also, the Secretary of State will be making various certificates under these new measures, a certificate in relation to detention or in relation to non-substantive consideration of an asylum claim. Challenges to that certificate should go to SIAC and people might at the very initial stage try and challenge that decision through judicial review. It is right to see this as a kind of preventative measure in case there are more challenges in the future. It is not based on any specific problems in relation to SIAC so far.


  212. You are seeking to abolish something that has never been done?
  (Mr Walsh) We are seeking to make it clear that judicial review is not to apply to decisions related to SIAC. It is correct that there have been, to my knowledge, no judicial review challenges to SIAC so far. There are various new procedures that have been introduced here involving two new certificates from the Secretary of State, so those procedures will be additional to the ones that currently exist. One of the aspects of this provision is to say that challenges to the Secretary of State's certificates should go straight to SIAC and that attempts to intervene at the first stage through judicial review of the certificates should not be allowed.

  213. Do you think the courts will let you get away with it?
  (Beverley Hughes) If it is passed, this will be the law. This will be the legal process defined in statute.

  214. You do not think the judges will look askance at anything that is designed to limit their jurisdiction?
  (Beverley Hughes) We do feel that because of the composition of the Commission led by a High Court judge, there is not any further need for judicial review outside of that process. There is an inbuilt judicial review element within the SIAC process itself and therefore to add another layer is unnecessary.

  215. The suggestion that has been made to us by some witnesses is that you are really seeking to deal with a problem which does not exist on the grounds that the courts have never been all that keen to get involved in judicial review. They have encouraged people to follow other existing procedures before they will entertain judicial review.
  (Beverley Hughes) I could turn that around and say that, given that there has not been any attempt to have a judicial review in the three cases we have had so far, that demonstrates the fact that there is judicial examination that appears to be working. It would be much better to clarify the detail of the process at this stage in the legislation and that is what we are doing.

David Winnick

  216. Would you accept, Minister, that those who will argue that on balance probably the government has got it right and that however undesirable it is detention in such circumstances as a threat of terrorism is justified, nevertheless would be happier if judicial review was allowed?
  (Beverley Hughes) I cannot see myself what a further judicial review would add to the process except to delay it and complicate the process. Judicial review has not been sought in the three cases we have had. That suggests that the judicial element in the process, particularly with the strengthening around the certification that Mr Walsh identified, is sufficient and I think it is preferable to be clear about the process. I think I can assure people that the people involved in the Commission will be undertaking a process that is a judicial review process and it is part and parcel of the system.

  217. There would be a feeling that, bearing in mind these very exceptional powers which no one can like, including I assume the government, at least judicial review would provide some basis in law whereby a person would be able to have the case examined against him or her. I am just wondering if the matter is such that the government is not willing to consider what would happen in Monday's debate and on the committee stage. Are you saying that the government has so made up its mind there is no possibility that they would look at the question of judicial review?
  (Beverley Hughes) In terms of the forthcoming debate, we have said and the Home Secretary has reiterated that we will listen to any sensible proposals during the course of the debate. If that assists in improving the proposals that we are putting forward throughout the Bill, then we are open to argument. In general terms on this particular issue, we would have to be pretty strongly convinced that adding a second opportunity for judicial examination, when we have built one in very clearly and very strongly into the process itself, was an improvement.

  218. We have had a memorandum from a leading lawyer, Martin Howe QC. Since I am not a lawyer, I am seeking your views. He says, ". . . clause 30 of the Bill appears to permit the validity of the order designating the derogation under section 14 of the Human Rights Act 1998 to be challenged . . ." and since it could be challenged before the Special Immigration Appeal Commission there is an appeal from this tribunal to the Court of Appeal and thence to the House of Lords. He seems to be arguing that section 30 in certain circumstances would allow such appeals to occur to the higher courts in the land. Is that so?
  (Beverley Hughes) There could be an attempt in the context of an individual case, through SIAC, to challenge but, to be quite frank, I do not think because of the legal provision that would be made in the Act that that would be a successful challenge at all.

  219. I am sure the lawyers in due course will find plenty to argue about in court.
  (Mr Walsh) It is correct that if someone is wanting to challenge the derogation itself clause 30 provides the challenge to that. It should initially be through SIAC and from there, on a point of law, SIAC's decision can go to the Court of Appeal and, if necessary, the House of Lords. That structure is the same for anything virtually that SIAC does. In terms of its decisions on a deportation order or in terms of a certificate on detention, the case would go to SIAC and, if there was a point of law challenge to that, it could go to the Court of Appeal with leave and after that the House of Lords. Clause 30 provides the same structure for challenges which are based partly or wholly on the validity of the derogation order itself.

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