Procedural safeguards and due process
rights 1: Right to a speedy review of lawfulness of detention
46. The safeguards for individual detainees centre
on the availability of an effective right of appeal to SIAC, and
the effectiveness of the six-monthly review of detention by SIAC.
In order to make use of the right to appeal, a detainee must have
timely access to effective legal assistance. The procedures in
SIAC, and, on appeal, the Court of Appeal and House of Lords,
must be such as to allow the detainee to present his or her case
as effectively as possible, and to secure a fair hearing. So far,
there has been no substantive hearing by SIAC. The first group
of appeals against certification and detention, to which reference
has already been made, began with a hearing to decide whether
the derogation order was lawful and whether section 21 of the
ATCS Act discriminated unlawfully on the ground of nationality.
These matters were dealt with as preliminary issues. The decision
of SIAC was followed by an appeal, and, as noted above, there
is now understood to be a pending petition for leave to appeal
to the House of Lords. SIAC has decided not to hold substantive
hearings on the justification for the certification in individual
cases until the preliminary issue has been finally settled.
47. As a result, some detainees have already been
in detention for fourteen months without having been able to obtain
a decision about the legality of their detention from an independent
and impartial tribunal after a fair adversarial hearing. Lord
Carlile has noted that it would be very hard to justify delaying
the commencement of substantive hearings until after the conclusion
of any litigation in Strasbourg that might follow a decision of
the House of Lords.
We agree. We consider that there is a significant danger that
delaying substantive hearings amounts to a violation of ECHR Article
5.4, which provides, '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.'
Admittedly the review procedure is available, but (as Lord Carlile
points out) the remedies
available after a review are less satisfactory than those following
a successful appeal. In particular, on a review SIAC has no power
beyond cancelling the certificate if it considers that there are
no reasonable grounds for the Secretary of State's belief that
the detainee's presence is a risk to national security, or his
suspicion that the person is an international terrorist.
By contrast, on an appeal SIAC may also cancel the certificate
if it considers that for some other reason the certificate should
not have been issued.
48. The failure of SIAC so far to conduct any
substantive hearings on appeals seriously weakens the effectiveness
of the appeals as a safeguard for Convention rights against arbitrary
use of the detention power. This might well be regarded as a reason
for refusing to continue the operation of the detention power.
Although each House will no doubt wish to balance that consideration
against other countervailing considerations, it is a relevant
factor to which we attach considerable importance, and we accordingly
draw it to the attention of each House.
33 Lord Carlile's ATCS Act review, pp. 9-10, para.
ibid., p. 16, para. 4.14 Back
ATCS Act 2001, s. 26(5) Back
ATCS Act 2001, s. 25(2) Back