My Lords, I welcome the opportunity to debate my noble friend’s amendment, because it provides me with the opportunity to reassure noble Lords that the safeguards we highlighted when we debated Clause 3 in terms of the Home Office’s process and policy, common law and case law protections and, indeed, judicial oversight, are in place when immigration bail applications are considered by SIAC. The power to detain under immigration powers flows from the Immigration Act 1971, and the consideration of whether detention remains lawful is governed by exactly the same legal principles. It is simply the venue that is different: SIAC, instead of the immigration tribunal. SIAC has its own procedure rules, separate from the tribunal procedure rules, and paragraph 2 of Schedule 9 requires SIAC’s rules to mirror those of the tribunal in how repeat bail applications made within 28 days should be handled in cases where there has not been a material change in circumstances. My noble friend’s Amendment 84A would remove the requirement for SIAC to dispose of repeat applications made on the same facts within 28 days without a hearing. That would create disparity between how different tribunals are required to handle the same matter.
As will be the case in the immigration tribunal, if a further bail application is made within 28 days of a previous unsuccessful bail application, SIAC can agree to an oral hearing, provided that there are genuine reasons to seek another hearing because there are materially different grounds to consider which may lead to a different outcome.
As I have said, safeguards are already in place. Clause 3 does not prevent an individual from applying for bail. Nor does it prevent an individual from challenging the legality of their detention, and legal aid will remain available for that. The Home Office will continue to conduct formal reviews of detention, and detainees will continue to have full access to legal advice.
I have been asked how many times the existing power has been used. The existing power has not been used for some time, so the Government have no statistics on its use. It is drafted so broadly that its meaning is,
arguably, unclear. The Government amendment is clear about the circumstances in which the power can be exercised and is proportionate. Therefore, it is more workable.
My noble friend Lord Avebury asked about judicial review and habeas corpus and their relationship with SIAC. He suggested that they were not adequate in SIAC. I hope that I can assure the noble Lord, Lord Pannick, that the position in SIAC differs from the position in the tribunal. SIAC is a superior court of record, whereas the tribunal, which considers most bail applications, is not. In SIAC bail applications, SIAC does consider the lawfulness of detention, and detainees do not have to apply for JR or habeas corpus, although those options remain open to them should they wish to do so.
I hope that I have covered the salient points made by my noble friend and the noble Lord, Lord Pannick. I understand that my noble friend’s amendment was probing. I therefore hope that my comments have reassured the noble Lords that there is no difference in the policy, procedural or judicial protections that those detained under immigration powers enjoy even if the case is under SIAC’s jurisdiction rather than that of the immigration tribunal. I therefore ask that my noble friend withdraw his amendment.