Clause 29 and schedule 5 taken together make a significant change to the powers of the Secretary of State and the first-tier tribunal in relation to immigration bail. The changes will have a significant effect on the ability of the tribunal to provide an effective safeguard against prolonged detention. In particular, paragraph 1(6) of schedule 5 provides that a grant of bail by a tribunal does not prevent the person’s subsequent re-detention. That is a significant departure from current provisions where bail is granted by a tribunal, under which re-detention is permissible only where the individual has breached the conditions of their bail. Paragraph 1(6) would allow the Secretary of State to effectively ignore and overrule the decision of an independent tribunal to grant bail. That is an issue of some concern.
There is a point in being able to go to a tribunal. It is generally recognised that at some point within the process, the individual must have access to an independent judicial body, with all the attributes of a judicial body, in order for a decision to be made on their liberty. Put bluntly, there is not much point in providing for an individual to go before a body with judicial characteristics if, at the end of that exercise, the Secretary of State can simply override the tribunal. In that sense, the amendment makes a point about rule of law and separation of powers. In what circumstances is it envisaged that it will be necessary for the Secretary of State to have the power to override a tribunal on a question of bail such as this?
Moving on to amendment 210—