My Lords, I will speak only to Motion C, which I support, along with Amendment 85A. On Report, when I abstained on the vote, I suggested that there was a problem with the existing scheme in that detainees have to take the initiative and prove their case for release. I suggested that it would be more proper that,
“the burden should shift to the Home Secretary to prove good reason to extend a period”.—[Official Report, 15/3/16; col. 1792.]
However, I could not support 28 days and suggested an initial period of nine months.
I am satisfied, for my part, that that problem is now properly addressed. As the Minister has explained, the proposed automatic referral at six months operates as a safeguard, because the detainee can of course himself apply for bail at any point. I recognise the point made by the noble Lord, Lord Ramsbotham, that some detainees, because of their mental condition, may well not be in a position to do so, but this safeguard has now been introduced. I further recognise that the tribunals to which application for bail is made apply a presumption in favour of liberty, and that of course the well-known common law principles initially established in the Hardial Singh case continue to apply.
Apropos of that, I will just refer to the decision of the Supreme Court as recently as last week, 20 April, in a case called Nouazli v Secretary of State. The court, giving a single judgment, says at paragraph 67:
“The courts have recognised that there are sound policy reasons for a flexible and fact-sensitive approach. I find nothing in the judgments of the ECtHR which undermines the Hardial Singh approach to the duration of detention”.
It then points that out an earlier Supreme Court decision, in another case referred to the court, observed that the Hardial Singh principles are,
“more favourable to detainees than Strasbourg requires”.
With those various safeguards in place, I support this Motion. I could not support the original amendment, Amendment 84, and I cannot, with respect, support the 56 days now proposed by the noble Baroness, Lady Hamwee. As I said, I initially suggested nine months. The Government have done better at six months, and even that will now be the subject of further review in case it can in future be shortened.