Joint Committee On Human Rights Fifth Report

Part 4 of the Bill: immigration and asylum

7. In our Second Report, we welcomed the Home Secretary's undertakings to re-examine several matters relating to Part 4 of the Bill.


8. First, we were concerned that there was no requirement in clause 21 that, in order for the Secretary of State to issue a certificate to set in motion the special detention powers under Part 4, his suspicion that a person is an international terrorist and the belief that he is a threat to national security should be reasonable.[20] We accordingly welcome the amendment to clause 21(1) of the Bill, made in Committee in the Commons, to introduce a legal requirement for reasonableness relating to a decision to certify a person as a suspected international terrorist.

9. However, this amendment is linked to others, also made in Committee in the Commons, to clauses 25(2)(a) and 26(4)(a), relating to the duties of the Special Immigration Appeals Commission (SIAC) when hearing appeals against certificates and conducting reviews of certificates respectively, and we continue to have some significant concerns relating to their effect.

10. The Commission was established under the Special Immigration Appeals Commission Act 1997 after the European Court of Human Rights had held that judicial review was an inadequate remedy for people detained with a view to deportation on national security grounds. The Commission was designed to remedy a resulting incompatibility between English law and Article 5(4) of the ECHR. Article 5(4) provides that—

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

In Chahal v. United Kingdom,[21] the European Court of Human Rights held that judicial review did not provide sufficient safeguards for liberty to satisfy the requirements of Article 5(4) in cases of deportation involving national security. They did so for two reasons. First, the courts in judicial review did not undertake a full review of the merits of Home Secretary's decision in such cases, but only quashed a decision if they considered that it was so unreasonable that no reasonable Home Secretary could have made it. Second, most of the information on the basis of which the Home Secretary made such decisions would be likely to be withheld from the court and from the applicant on public-interest grounds, making review by the courts too exiguous to offer real protection for the right to liberty.

11. The SIAC, which was established to remedy these weaknesses, is an independent judicial tribunal[22] which, because it is a public authority within the meaning of section 6 of the Human Rights Act 1998, must act fairly in accordance with the requirements of Article 6 of the ECHR. It has power to receive material dealing with national security matters, and to appoint a special advocate to represent the interests of the deportee in cases where security considerations make it inappropriate to disclose all the information to the deportee in person or to his or her own legal advisers. There are different views on the adequacy in relation to concepts of natural justice, or the expediency in political terms, of the SIAC system. We make no attempt to adjudicate in that debate. Our narrower task is to consider questions of compliance with Convention (and other) rights.

12. In our view, proceedings before the Commission in a national security case arising under the 1997 Act are likely to satisfy the requirements of Article 5(4). Clauses 25 and 26 of the Bill, as originally drafted, would have allowed the Commission to fulfil the same function in cases arising under Part 4 of the Bill. For that reason, we took the view that for a person detained under Part 4 of the Bill, their rights under the Convention to a fair and speedy hearing would not be abrogated by being denied access to judicial review and habeas corpus. Indeed we considered, having regard to the decision in Chahal v. United Kingdom,[23] that the detainee's rights would have been better protected in proceedings before the Commission than by an application for judicial review or habeas corpus. However, we must now consider whether the amendments to clauses 25 and 26 are likely to undermine this protection in a way which threatens a detainee's Convention rights.[24]

13. Clause 25 is concerned with an appeal by a suspected international terrorist against his certification by the Secretary of State. The appeal would have to be brought within three months of the date on which the certificate is issued.[25] As amended in the House of Commons, clause 25(2) reads—

On an appeal the Commission must cancel the certificate if—

(a) it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), or

(b) it considers that for some other reason the certificate should not have been issued.

We regard paragraph (a) as requiring the Secretary of State to present to the SIAC objective evidence demonstrating that there are such reasonable grounds. This combination of grounds makes it possible for the Commission to cancel a certificate if, for example, it decides, after examining the evidence advanced by the Secretary of State and the appellant, that there were reasonable grounds for issuing the certificate, but that the Commission is satisfied on the basis of the fuller evidence available to it that the suspicion or belief, albeit reasonable, was wrong. By allowing—indeed requiring—the Commission to take account of all the evidence available at the time of the hearing of the appeal, clause 25 allows the Commission to do its job properly in relation to appeals, and appears to provide a sufficient safeguard for the right to liberty under Article 5 of the ECHR to satisfy the requirements of Article 5(4) as interpreted by the European Court of Human Rights in Chahal's case.

14. On the other hand, clause 26 deals with automatic, periodic reviews by the Commission of the continuing detention of people certified under clause 21, starting after any appeal has been determined.[26] The terms and effect of clause 26(4), as amended, are different from those of clause 25(2), as amended. Clause 26(4), as amended, provides that—

On a review the Commission—

(a) must cancel the certificate if it considers that there are no reasonable grounds for a belief or suspicion of the kind referred to in section 21(1)(a) or (b), and

(b) otherwise, may not make any order (save as to leave to appeal).

As a result of the difference between clause 26(4)(b) and clause 25(2)(b), the Commission would be able to cancel a certificate on review only if satisfied that there was no reasonable ground for the suspicion or belief. It seems to us that it would not be able to act on the basis of later evidence which now showed that the suspicion or belief, while reasonable, was mistaken.

15. We are not convinced that clause 26(4), as amended, satisfies the requirements of Article 5(4). Those requirements do not run out at the point where an initial decision to detain someone has been held to be justified. They impose a continuing obligation to ensure that there is a regular review, which is frequent enough and rigorous enough to ensure, so far as possible, that people do not remain in detention for longer than the circumstances require.[27] We have come to the conclusion that there is a significant risk that clause 26(4), as amended, could permit a person to be detained indefinitely after new evidence or a change of circumstances led to a situation in which the suspicion or belief under clause 21(1), while reasonable, was shown to be mistaken. This seems unlikely to represent the intention of the Government, and would be likely to give rise to a violation of Article 5(4) of the ECHR.

16. In our view, clause 26(4)should be amended so as to make clear the grounds which the SIAC can consider on a review are equivalent to those which it can consider in an appeal under clause 25(2). We conclude that such an amendment would be likely to avoid the risk of incompatibility with Article 5(4) of the ECHR while being in harmony with what we understand to be the Government's intentions. We accordingly draw the matter to the attention of each House.


17. In this connection, we also draw attention to a related matter which we raised with the Home Secretary in our evidence session on 14 November. We raised the question of whether, in view of the seriousness of deprivation of rights involved, the review period of six months should be reconsidered.[28] The Home Secretary undertook to look again at the intervals between the first and any subsequent reviews. The Government has now undertaken to introduce an amendment to clause 26 so that (as originally proposed) there would be an initial review six months after the start of detention or the determination of any appeal, but subsequent reviews would take place after periods of no more than three months.[29] We welcome this undertaking, which reduces the risk of the detention regime being held to be incompatible with Article 5(4) of the ECHR. Nevertheless, we are not persuaded that there is a sufficient reason for delaying the first review for six months after the initiation of detention or the determination of any appeal. Nor are we satisfied that review periods of three months will always satisfy the requirements of Article 5(4). Monthly reviews would be safer, and we are not persuaded that they would be impracticable. We accordingly draw this matter to the attention of each House.


18. The other matter on which we welcomed the Home Secretary's undertaking to reconsider was the wording of clause 27(9), which is concerned with the steps which the Secretary of State would be permitted to take after the Commission or (on appeal on a point of law) a court had cancelled a certificate issued under clause 21. As originally drafted, this provision would allow the Secretary of State to issue another certificate, 'whether on the grounds of a change of circumstances or otherwise'(our emphasis). This could result in cases being batted backwards and forwards indefinitely between the Secretary of State and the Commission, and would not offer adequate protection for detainees against arbitrary interference with their right to liberty under Article 5 of the ECHR. We acknowledge that the Home Secretary has reiterated his willingness to look again at the question of the wording of clause 27(9) in the House of Lords. We note that the Minister of State, during the Committee in the Lords, told that House that the Government had examined the wording and had, as yet, failed to come up with a satisfactory alternative. He also described the kind of circumstances in which a second certificate might be issued, giving three examples. These were: where a change of circumstances now gave new grounds for suspicion that a person was a suspected international terrorist, over and above those grounds previously considered and rejected by the SIAC; where new evidence had emerged to substantiate a previous belief which had been rejected by the SIAC; or where a certificate had been cancelled on technical grounds or a higher court had overturned a decision of SIAC on technical grounds.[30] He went on to say—

I confirm that the our intention is that the Secretary of State will issue a fresh certificate only if it is justified. We will rely heavily on SIAC, which would rightly take a dim view of any Secretary of State who seemed to be ignoring its decision. 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 hope the noble Lord and the Noble Baroness will be satisfied that we are acting honourably ...

The Minister also rejected the suggestion that clause 27(9) was entirely unnecessary, since he believed that, without it, the legislation might be interpreted as denying the Secretary of State any opportunity to make a new certificate.[31] Nevertheless, he subsequently said, "If we can find a way of satisfying the desires of the [JCHR], we shall certainly do so. We have not stopped working on the clause."[32] We believe that it should be possible to amend clause 27(9) in a way that will reflect the Government's intentions, which seem now to have been spelt out sufficiently clearly to enable a satisfactory amendment to be drafted. The Secretary of State could be enabled to issue a new certificate if, and only if, (a) there is fresh evidence, (b) the original certificate was quashed on technical grounds rather than because there were insufficient grounds for making it, or (c) there has been a material change of circumstances justifying the making of a new certificate. We still consider that the sub-clause as currently drafted does not provide adequate safeguards against arbitrary detention. Alternatively, the provision could be omitted entirely. The legal uncertainty which might flow from the absence of any such provision is outweighed by the uncertainty and potential unfairness, in relation to the protection of rights under Article 5 of the ECHR, flowing from the use of the words "or otherwise".


19. A further matter which the Home Secretary agreed to reconsider was the definition of 'international terrorist' in clause 21(2). In particular, we considered that the category of people under clause 21(2)(c) who have 'links with' an international terrorist or international terrorist group was too vague and indeterminate to satisfy the requirement for certainty which forms part of the basis for the lawfulness of a detention under Article 5 of the ECHR.[33] We welcome the amendment, during the Committee Stage in the House of Lords, to clarify the connection which would justify bringing someone within the detention provisions. The amended version of clause 21(2)(c) limits it to people who have links with international terrorist organizations, while the new sub-clause explains that a person has links with such an organization only if he or she "supports or assists" it. We note that "supports" will have to be interpreted as meaning "supports in a material or active way", in order to avoid violating the right to hold opinions conferred by Article 10(1) of the ECHR and Article 19(1) of the International Covenant on Civil and Political Rights. It would be desirable if the wording of the Bill made this clear.


20. We also welcome the insertion, in a new clause (now clause 28), of provision for an annual review of the operation of the detention provisions in the Bill. In addition, in what is now clause 29(7) of the Bill, there is a 'sunset clause' under which the detention provisions in the Bill (clauses 21 to 23) will cease to have effect at the end of 10 November 2006, in addition to the annual renewal requirement already in the Bill. We intend ourselves to review the working of the Act in relation to the protection of human rights before the first renewal order and consider whether its further continuation appears appropriate in relation to those concerns.


21. In our Second Report, we suggested that clause 27 of the Bill should make it clear that the special advocate, appointed by the Commission to represent the interests of the detainee in those parts of the hearing concerning national security information which could not be divulged to the detainee or his legal advisers, is able to appear before the Court of Appeal and the House of Lords on appeal from the Commission.[34] In relation to this, the Home Secretary has said—

... when the advocate ... is appointed for the particular purposes of evidence that would not be admissible in other circumstances, nothing precludes the representative nominated by the person concerned from taking other aspects of the case, including appeal. That person may also decide to nominate themselves as the advocate and take the appeal to the Court of Appeal or to the House of Lords if leave is given.[35]

22. It is not clear to us whether this statement made in the Commons is consistent with the reply given during oral evidence to us.[36] We remain of the view that there may be situations in which the detainee's opportunity to obtain a fair hearing in any appeal from the Commission to the Court of Appeal or House of Lords might be prejudiced by the absence of the special advocate, nominated by the Commission to represent the detainee's interests in parts of the hearing where the detainee and his own legal advisers cannot be given relevant information or be present. When Secretary of State for the Home Department v. Rehman (an appeal by the Home Secretary from a decision of the Commission) was before the Court of Appeal, Lord Woolf M.R., made the following comments—

As it was possible that part of the hearing would have to be in closed session, Mr. Nicholas Blake [the special advocate who had been nominated by the Commission for the purposes of its hearing] appeared at the request of the court. The Act of 1997 makes no provision for a special advocate on an appeal. However, it seemed to us that, if it was necessary for the court in order to dispose justly of the appeal to hear submissions in the absence of Mr. Rehman and his counsel, under the inherent jurisdiction of the court, counsel instructed by the Treasury Solicitor, with the agreement of the Attorney-General, would be able to perform a similar role to a special advocate without the advantage of statutory backing for this being done.[37]

We note that no similar provision was made when the case reached the House of Lords.[38]

23. In our view, a safeguard which depends on the discretionary exercise of the inherent jurisdiction of a court which is normally regarded as having exclusively statutory powers, and on the exercise of the discretion of the Treasury Solicitor and the Attorney General, is less than totally reliable. We recognize that all concerned will be public authorities, and so bound to act in accordance with the applicant's rights under Article 5(4) and Article 6 of the ECHR. However, we consider that the Bill should be amended to make it clear that there is power to call on the special advocate at any appeal from the Commission's decision, in order to secure a fair hearing for the detainee. We accordingly draw the matter to the attention of each House.

20   See especially QQ 36 and 37 in the Second Report, op cit Back

21   (1996) 23 E.H.R.R. 413 Back

22   In Chahal, at para. 131 of the judgment, the ECtHR attached significance to the fact that a more effective form of judicial control in cases involving national security and terrorism had been developed in Canada, as pointed out by the interveners in that case (Amnesty International, JUSTICE, Liberty, the Aire Centre, and the Joint Council for the Welfare of Immigrants). The Court said, "This example illustrates that there are techniques which can be employed which both accommodate national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice." The institution of the SIAC and the procedure which it follows were based on that Canadian model Back

23   op cit Back

24  This matter received some attention during the Committee Stage in the House of Commons: see HC Deb., 21 November 2001, cc 373-375 Back

25   Clause 25(5) Back

26   See paragraph 17 below Back

27  See eg Hirst v. United Kingdom, Eur. Ct. HR, App. No. 40787/98, judgment of 24 July 2001, in relation to reviewing the continued detention of a prisoner serving a discretionary life sentence after the end of the 'tariff' period Back

28   Second Report, op cit, para 50 and Q 40 Back

29   HL Deb., 29 November 2001, c 541 (Lord Rooker) Back

30   ibid, cc 543 - 4 (Lord Rooker). Back

31   ibid., col. 544 Back

32   ibid., col. 545 Back

33   Second Report, op cit, paras. 35-36 Back

34   Second Report, op cit, paras. 48-49 Back

35   HC Deb., 21 November 2001, cc 389 Back

36   Second Report, op cit, para. 49, and Q 39 Back

37   [2000] 3 W.L.R. 1240, C.A., at pp. 1250-1251 Back

38   [2001] 3 W.L.R. 877, H.L. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2001
Prepared 5 December 2001