Later in the morning—I am grateful for the correction.
In considering the lawfulness of detention and a writ of habeas corpus, the High Court would undoubtedly apply the Hardial Singh principles. Given his remarks, I remind the noble Lord, Lord German, that those principles were established in that habeas corpus case, as I have already pointed out.
As the noble Lord, Lord Anderson, has set out, Amendments 71 and 72 seek to restrict the use of detention where there is a barrier that prevents the purpose of detention being carried out. The fear is that the provisions in Clause 11 will be used to extend detention indefinitely. This is simply not the case; the Bill does not provide for indefinite detention. Moreover, our aim is to ensure that people are not held in detention for any longer than is absolutely necessary. Circumstances can change in detention. Barriers are anticipated and, in many instances, can be resolved quickly with examination, decisions or removal still able to take place within a reasonable period. Where there is a significant and/or material change in a person’s circumstances, our policy is clear that detention must be reviewed. If it is considered that the anticipated period of detention is not reasonably necessary, the individual will be bailed.
Amendment 71A tabled by the noble Lord, Lord German, probes whether detention for the purpose of making arrangements for release is permissible under Article 5 of the European Convention on Human Rights. The Government’s position, as set out in our published ECHR memorandum, is that giving a discretionary power to the Secretary of State to detain an individual for a period that is reasonably necessary to enable arrangements for the person’s release is Article 5 compliant. It is a matter of common sense that it may be necessary to detain an individual for a short period of time to make practical arrangements for their release from detention. In accordance with Article 5, an individual will be able to challenge the lawfulness of their detention via the courts at all points of their detention, either via an application for a writ of habeas corpus, via judicial review or via an application for bail to the First-tier Tribunal after the first 28 days of detention have elapsed.
We continue to study the Constitution Committee’s report, and in preparing our full response we will take account of what has been said in this debate, but I do not accept the conclusion of the Constitution Committee that the detention provisions in the Bill are inappropriate. No doubt we will return to this at the next stage, by
which time we will aim to have responded formally to the Constitution Committee’s report. In the meantime, I invite the noble Lord to withdraw the amendment.