Examination of Witnesses (Questions 120 -
THURSDAY 8 NOVEMBER 2001
120. Yes; most certainly. Sticking with fingerprints
for a moment, I understand the position is that fingerprints in
immigration and asylum cases have to be destroyed after the case
is dealt with. That is the existing position. The plan is to keep
them for up to ten years in order to improve the identification
of individuals. Are you saying you are against that or for it?
(Nicola Rogers) I am against it in the
same way as data being kept for a very long time. If a person
came in ten years ago and has been recognised as a refugee and
has been living here for ten years, I can see no reason why a
fingerprint would need to be kept for that length of time. However,
I do accept that there may be circumstances in which fingerprints
should be kept in respect of persons the Secretary of State is
worried about. Perhaps he should have to have a system by which
he specifically has to apply for the keeping of that fingerprint.
For instance, if it were the sort of case we have talked about
today, where a person has been allowed to remain but the Secretary
of State were not happy about that and he had brought it to the
attention of SIAC that the person had ended up remaining, then
perhaps there could be a procedure whereby he applied if he wanted
to keep this fingerprint.
121. I guess what they are worried about is people
coming back on multiple identities, which does happen in the world
of terrorism. I see you raise your eyebrows.
(Rick Scannell) No, I was acknowledging
(Nicola Rogers) We do acknowledge the problem.
122. I thought that part and parcel of the Dublin
convention was that asylum seekers coming in are automatically
fingerprinted and that becomes part of the international/European
Union fingerprint databank.
(Nicola Rogers) The Eurodac convention
requires that member states fingerprint. That is said to be going
to facilitate the Dublin convention.
123. Are they kept on record?
(Nicola Rogers) Yes, they are kept.
(John Wadham) What we are suggesting is that once
the case has been dealt with they should be destroyed unless there
is some suspicion and that suspicion should be justified to a
court or someone else in a particular circumstance.
124. To SIAC?
(John Wadham) Yes; exactly and that may
be justified. I would have thought that the vast majority, 90
per cent, 99 per cent of asylum seekers who do obtain asylum or
are entitled to stay in this country, probably are not a threat
and it would be wrong in principle to keep their fingerprints
in the way you would people who have been convicted merely because
they have been persecuted in another country.
125. But that is happening now.
(John Wadham) There is a two stage process.
There is collecting the information for fingerprints at the beginning
and there is how long those are kept. I am trying to suggest that
there should be controls and protections in relation to the length
of time that those fingerprints are subsequently kept. For instance
in criminal law your fingerprints are taken when you go to the
police station, but if you are not convicted or you are not charged
they are subsequently destroyed. That is the kind of mechanism
I am suggesting should apply generally, except where there is
some good reason for that particular individual's fingerprints
being kept for a longer period.
(Rick Scannell) The current obligation is to destroy
as soon as reasonably practicable where someone is recognised
as a refugee. That is a protection which we would not wish to
126. May I just take you back briefly to the
business about the scope for appeals against removal? I am not
sure we were talking specifically enough. The Bill proposes to
limit the scope of appeal which could lead to an increase in judicial
reviews unless removed. Under the Bill SIAC could only cancel
the Secretary of State's certification and remit it back to the
Secretary of State. That is the change. Or they could dismiss
the appeal. If somebody appeals against detention, the appeal
could be dismissed but all that happens if they uphold the appeal
is that it is referred back to the Secretary of State who in the
end may have the final decision I suppose.
(John Wadham) The first question to ask
is whether that process is right in principle. I would say that
it is not and it probably does not comply with the ruling which
started this SIAC process all off, Chahal. The key issue
in his case was the right to an effective independent remedy against
the decision of the Home Secretary. We would say that the key
reason for SIAC to exist is to be able to make decisions overturning
the view of the Home Secretary, so that would be wrong in principle
and we would say contrary to Article 13 and probably challengeable
in the European Court of Human Rights. The second point is if
they do limit the appeal in the way suggested, then the courts
are very likely to want to open up that process with a judicial
review, precisely because it will not comply with Article 13 and
the European Convention on Human Rights. If in the legislation
the Government tries to shut the door by ousting the jurisdiction
of the judicial review, then there will be a battle about that
and that matter will go to the House of Lords. It is difficult
without seeing the text to know which way that would go, but I
am sure once it gets to the Strasbourg court, the Strasbourg court
would say you have to have a better mechanism than you have suggested.
That of course takes five years.
(Rick Scannell) It sounds also from what you have
just said that status determination would be cut out of the appeal
process, in other words, the question as to whether the removal
would itself engage Article 3 or whether the person is or is not
a refugee. If that were rightand I am slightly alarmed
to hear the proposal put in that wayit seems to suggest
that what is contemplated is only a form of reviewwe object
for reasons which have been given to what would appear to be anticipatedis
one which engages with the detention. Going back, there are far
more fundamental questions which should be asked first: whether
the person is a refugee or whether there would be a risk that
if removed to a country such removal would put the UK in breach
of its obligations under Article 3. Both those substantive questions
are questions in respect of which any removal of appeal rights
would be in fundamental contradiction of any proper notion of
the rule of law. We would object vehemently to the withdrawal
of an appeal in respect of status to determination. That is what
SIAC is there to do and that is what it does. One more sentence
about that. In the context of the refugee convention, there are
already ample powers within that convention to exclude from its
application people who are considered to have been involved in
acts of terrorism. I am talking in the broadest possible way now.
Article 1F deals with exclusion in three discrete circumstances
and there is the ability under Articles 32 and 33 in effect to
prevent people who are regarded as a danger to the national security
of the country being able to enjoy the protection of that convention.
Those are all sensitive issues of fact and they would have to
be assessed and determined on appeal by SIAC.
127. Sticking with the refugee convention, that
gets you to the point where you reject an application but there
is still the question of what you do with them whilst you process
that application if you cannot send them back to where they came
(Rick Scannell) Indeed, which then engages
with the last question. My concern was that if I understood correctly,
what may be proposed is something which cuts out completely the
review of the former substantive status determination and that
would be something we would have profound concerns about.
128. Our understanding of what is going to be
in the Bill is that the Government wants to remove access to judicial
review of all SIAC cases. That is our understanding. Can you explain
whether there are any other examples where the Government has
tried to exempt a series of procedures from judicial review and
has it worked?
(John Wadham) Yes. In our notes we refer
to cases such as Anisminic and other cases where the Government
in the past has tried to avoid judicial review.
129. Could you spell that out?
(John Wadham) It is in our document.
130. Just in case you think we have been slack,
I am afraid we only received your memorandum minutes before the
meeting, so we have not had time to read it all.
(John Wadham) Absolutely and that was
our fault. A-N-I-S-M-I-N-I-C against the Foreign Compensation
Commission and another case involving ex parte Fayed against
the Home Secretary. These are different circumstances of course
because there will be something fundamental about the decision
the Secretary of State is making, which is not just whether compensation
is paidI am not suggesting that is not fundamentalbut
actually whether somebody is a genuine asylum seeker, whether
they are going to be sent back to a country where their Article
3 rights were violated and whether or not they are going to be
detained indefinitely, I cannot imagine there are more fundamental
questions that those three. In that context the courts will be
very concerned to see their jurisdiction ousted and will be looking
for ways in which they can provide an independent element, particularly
because the European Convention on Human Rights says in Article
13 that there must be an independent element in relation to those
131. To a non-lawyer such as myself, your answer
to my question is yes, they tried to do it before and no, it does
not really work.
(John Wadham) It only works in some circumstances
and the question for the courts will be the nature of the issue
for the person, as to whether or not it works or not.
(Professor Gearty) The judges hate it. It is very
hard to construct something that succeeds in avoiding their distaste.
132. You wanted to make one or two points about
the sunset clauses. Who is our sunset clause correspondent?
(Professor Gearty) I am not sure, but
perhaps we all feel that one of the most important elements to
this might be to put some kind of time limit on it. The reason
for that would be that it would keep the issue alive and there
would be a need for reports and it would maintain the sense of
the urgency and the importance and one hopes the temporary nature
of the crisis that provoked these powers. We see it as a fundamental
importance from the point of view of principle to maintain the
idea that this is a deviation from the norm.
133. Would you have an annual review or an annual
report to Parliament?
(Professor Gearty) Yes. Also there are
some analogies here with some other areas within the Home Office
remit where independent inspectorates and inspectors have really
made a difference. We had hoped there might be a truly independent
person trusted with the oversight of the exercise of these powers.
134. You would not sunset clause the whole thing,
would you, just the key parts?
(John Wadham) We would say: as the prevention
of terrorism used to be. There was a five-yearly sunset clause
where the legislation fell unless it was completely re-enacted.
In addition to that there was a yearly review where if it was
not re-enactedI am not sure what the technical expression
isthen it would fall as well. In relation to the yearly
process, there was an annual report from a reviewer which reported
to Parliament setting out his understanding of the ways in which
the Act had been used. I must say that our experience of some
of those reviewers in the past has been that they have not been
as independent of government as we would like them to have been.
We would want to see someone who reviewed these provisions who
was respected not just by government but by the likes of us, so
we could trust them to delve into the circumstances and difficulties
in a way which would mean there was a real challenge to the proposals
every year. Then it would be for Parliament, having read their
report, to make decisions about whether they re-enacted the legislation.
135. An annual review reporting back to Parliament
and renewal every how often?
(John Wadham) Five years was selected
presumably because each time of the review there would be a new
136. Was the Prevention of Terrorism Act not
(Professor Gearty) Initially it was only
six months. Mr Jenkins, the then Home Secretary, said that he
hoped very much not to have to come back and ask for it. So there
was an initial enormous reluctance to think of it as other than
very, very temporary and that gradually grew and grew until it
became an extended period. Here the main purpose would be to flush
out which bits they really think are integral to our criminal
justice system and are here to stay and which bits they think
are reactive to 11 September. We should not just glumly accept
that 11 September is here for ever; that would keep the issue
alive as to the length. The annual renewal might be an important
discipline; an annual renewal which is fed by a report from an
independent scrutineer which the whole community can understand.
137. Good, I am glad we clarified that. Any other
points you want to make.
(Nicola Rogers) The terms of Article
15 and the derogation particularly in respect of one of the most
serious questions which would be the indefinite detention require
that there is a present threat and that implicitly implies that
there ought to be very strict and continuous review of that mechanism,
particularly when you are involving yourself in measures which
are so crucial to fundamental liberties.
Chairman: Any other points? In that case the
session is closed, though not before I thank you very much for
coming, secondly also say to you again that we have a Home Office
Minister coming on Wednesday next week. If you have suggestions
for questions we ought to be putting to her, and by that time
you may have seen the Bill, do not hesitate to get in touch.
Mr Cameron: It does seem to me that it is very
important we look at what is going to be in the Bill and ask what
is most related to 11 September, an emergency, and what is least
related to 11 September and what is not really an emergency. I
should be very interested in your thoughts on that in particular.
Chairman: The session is closed.