My Lords, Part 2 of Schedule 9 applies new provisions on bail to proceedings before the Special Immigration Appeals Commission. SIAC frequently deals with persons detained by administrative fiat under high-security conditions without a time limit and without being brought automatically before a court, in conditions normally reserved for persons serving long sentences for criminal offences. Yet those appearing before SIAC have not been convicted of any offence at all.
As I hope to demonstrate in a moment, it is a matter of settled law that the alternatives to a bail hearing—that is, an application for habeas corpus or a judicial review of the lawfulness of detention—are insufficient in cases before SIAC to comply with Article 5 of the European Convention on Human Rights: the right to liberty and security of person. That article 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”.
The Government’s justification in the Home Office’s memorandum on SIAC and the ECHR is that the power to grant bail is limited rather than removed and that the Secretary of State has discretion over bail in certain circumstances, but the Secretary of State is not a court of law for the purpose of Article 5(4) and the question is therefore whether JR and habeas corpus are sufficient for the purpose of compliance. In Chahal v United Kingdom in 1996, 23 EHRR 188, paragraphs 58 to 61, the European Court of Human Rights held that neither judicial review nor habeas corpus provided an adequate basis for challenging a deportation on national security grounds because closed material could not be disclosed in those proceedings. These principles can be applied to challenging a decision to detain. The High Court would not be able to undertake a full review of the lawfulness of the detention sufficient to comply with the conditions of Article 5(4). That point is not addressed in the government briefing, which assumes without argument that judicial review and habeas corpus provide adequate remedies. We know that this concern has been drawn to the attention of the Home Office, and we therefore expect a full reply from my noble friend. I beg to move.
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