Clause 48 - Bail
Nationality, Immigration and Asylum Bill
5:45 pm

Mr Humfrey Malins (Woking, Conservative)

I beg to move amendment No. 234, in page 26, line 22, leave out 'eight' and insert 'seven'.

This is a short probing amendment. The right of an applicant detained for further inquiries at a port under section 16(1) of the Immigration Act 1971 to apply to an adjudicator or immigration officer for bail under paragraph 22 of schedule 2 to that Act becomes effective after seven days. Why does clause 48 refer to eight days, which is a day longer than the more traditional period that applies in the earlier legislation and in the criminal justice system? No explanation for the increased period is apparent, other than administrative convenience. I should be grateful for an explanation.

Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

I hope that I can provide an explanation that satisfies the hon. Gentleman. The transfer of authority to grant bail after the eighth day of detention reflects organisational changes in the immigration and nationality directorate that are part of ongoing improvements in service delivery. The provision is part of the measures to ensure that immigration officers are deployed to best effect—on front-line control and enforcement work. Bail applications need not be dealt with exclusively by immigration officers.

The transfer of the power to grant bail from immigration officers to the Secretary of State or IND officials will help to ensure that immigration officers can be deployed in enforcement work. The timing of the transfer—after the eighth day—reflects the point at which management of a person's detention is planned to switch from the port or enforcement office to IND caseworkers. It is sensible for the authority to grant bail to be transferred at the same time, rather than a day earlier.

Mr Humfrey Malins (Woking, Conservative)

I am grateful for that explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Humfrey Malins (Woking, Conservative)

I beg to move amendment No. 256, in page 26, line 41, leave out subsection (6).

Mr Alan Hurst (Braintree, Labour)

With this we may discuss the following amendments: No. 266, in page 26, line 42, leave out 'cease to have effect' and insert—

'have effect immediately with the coming into force of this Act.'.

No. 233, in page 26, line 42, leave out 'cease to'.

Mr Humfrey Malins (Woking, Conservative)

Amendment No. 256 would prevent the repeal of part III of the Immigration and Asylum Act 1999, and deals with the important topic of bail. I am sure that many members of the Committee are disappointed and concerned about the proposed repeal of those provisions, which provide for automatic bail hearings for detained asylum seekers. The Government accepted the need for such hearings in 1999, but the legislation was never implemented.

When introducing the then Immigration and Asylum Bill, the then Home Secretary said that:

''detention . . . is necessary in a small number of cases, but there must be proper safeguards. Part III fulfils the commitment in the White Paper to introduce a more extensive judicial element in the

detention process. That will be achieved by introducing routine bail hearings for those detained under immigration legislation.''—[Official Report, 22 February 1999; Vol. 326, c. 39.]

It is a major disappointment to many NGOs in the field that part III has never been implemented. Indeed, the implementation of those provisions may well be necessary to ensure compliance with article 5 of the ECHR, which guarantees

''liberty and security of person''.

The Bill contains no alternative safeguards to those in part III, so it is obvious that repealing those provisions will mean that there is no proper judicial oversight of the original decision to detain. That could lead to non-compliance with UN guidelines on arbitrary detention. The Minister may say that it is open to the person concerned to make an application for bail, but in reality that is not satisfactory. The automatic triggering of bail applications that we envisage is a good thing, and should be introduced without delay.

I express my regrets—which I think are shared widely—about the provision. I argue for the removal of subsection (6), as that would enable the bail provisions in part III of the 1999 Act to be implemented.

Mr Neil Gerrard (Walthamstow, Labour)

This is one of the provisions of the Bill that I find very disappointing. We had a long discussion in Committee in 1999 about the need for the provision of automatic bail. As the hon. Gentleman said, people may apply for bail in any case, but my experience is that for many people there are significant difficulties associated with doing so. It is often difficult to find adequate legal representation to make a bail application. Also, many people in such circumstances have problems finding sureties, even though there are now some organisations that try to help in providing sureties when they are required.

When we are dealing with the detention of asylum seekers and immigration detainees, we are generally dealing with people who are being detained on an administrative decision without having committed a criminal offence. No court has made the decision to detain them. We should be as careful as possible to make sure that a person's detention can be scrutinised and challenged.

On Second Reading, there were suggestions that bail would be used to frustrate the process of detention and removal. It is difficult to argue that, as that has not happened. Let us imagine the case of someone in detention whose asylum claim has been rejected; whose appeal has been refused by an adjudicator; who has tried to take their case to the Immigration Appeal Tribunal and has been refused; and whose lawyer has tried to get a judicial review and has been refused. I can understand the argument that if removal directions have been set and that person is due to be removed in 10 days, there would be no point in a bail hearing after they had been in detention for seven days. I would perhaps have sympathy with that argument.

However, that is not what this is all about. It is about ensuring that those who are detained have the opportunity to challenge the decision to detain them. I am sure that some hon. Members will have seen the

study undertaken by the faculty of humanities and social sciences at South Bank university, which considered what happened to people who had been given bail. It found that the vast majority—more than 90 per cent.—of those given bail complied with their bail conditions. There is no evidence that when people are given bail they abuse it and do not comply with the conditions. It is also tremendously expensive to keep people in detention, compared with letting them out on bail in compliance with bail conditions.

I cannot see the argument behind removing access to bail. We spent long hours only three years ago discussing why it was needed. In the end, the automatic bail hearing was accepted as a Government proposal, but it was never put in place or tested to examine whether it would work.

I go back to points that were made during the earlier debate. We are clearly detaining many people who are at the point at which decisions have not been made on their claims. I heard what the Minister said about shifting the process, but there is a long way to go to achieve that. It has been said that detention will occur at the end of the process and just before removal, but we are a long way from that. I know that only a small percentage—about 2 per cent.—of people are detained at any one point, but if one examines the totality of how many asylum seekers have been detained, a considerably higher percentage have been detained at some point during their claim process.

I am disappointed by the change to remove what most people considered to be one of the relatively few positive changes that were made by the 1999 Act.

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

I agree with the hon. Gentleman. We have sat through the same debates, and he and hon. Members of all parties told the Government why automatic bail hearings were essential if we were to have a system of administrative detention for immigration purposes that complied with the European convention on human rights and commanded respect as being fair. The principle of the bail hearing to check automatically at a reasonable interval whether an individual is detained properly is essential, because in practice individuals are detained for long periods without access to proper legal advice. The bottleneck is caused when people in the legal establishment, whether they work for voluntary sector organisations or pro bono, are not immediately able to get round to see people in detention. Many people were not seen.

The Government's concession in introducing the automatic bail hearing during consideration of the 1999 Act was significant, and they claimed credit for that at the time. It is extremely disappointing for anyone sitting here three years later to see the withdrawal of the Government's concession before it was ever implemented. One wonders what one must do to make an argument that sticks with the Government, rather than one that they will accept when convenient in order to get a Bill enacted.

Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

I do not think for one minute that that thought was in the minds of the Ministers who put

part III in the 1999 Act. I shall explain in due course why we have decided to repeal it. I hope that the hon. Gentleman will not think that the insertion of part III was a cynical ploy to keep people happy, because that is not my understanding of what happened.

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

I have clearly watched too many episodes of ''Yes, Minister'' and other programmes that create cynicism about the machinations of Government. I accept the Minister's assurances that there was a genuine intention to implement the provision, and I look forward to her account of why that has not occurred.

Like the hon. Member for Walthamstow, I understand that if the regime were changed to one in which the vast majority of those held in removal centres had finished the process and were about to be removed, the automatic right to bail might be less necessary. However, the Government have not suggested that there will be a change to stop many people being detained for long intervals without having committed a crime—such people should have their cases reviewed at appropriate intervals. We have a legislative framework for the new concept of removal centres in which the vast majority of people await removal and questions of bail may be less necessary. However, there is no sign that administrative practice will change in such a way that we can expect removal centres to contain only those people. Instead, they will continue to contain many people who are detained for various immigration reasons and to whom bail provisions would apply.

It was suggested that lawyers considered alternatives to bail, such as judicial review and habeas corpus, but none proved as satisfactory as the automatic right to bail. That is why Ministers and members of the relevant Committees accepted the logic in 1999. The withdrawal of the provision concerns us. Will the Minister tell us why she believes that it is justified? I will explain our gentle amendment No. 266, which would reverse the sense of the clause by bringing the bail provisions immediately into effect, rather than repealing them. We still believe that those bail provisions should be brought into effect.

Mr Mark Lazarowicz (Edinburgh North and Leith, Labour/Co-operative)

Hon. Members have received many representations from NGOs and voluntary organisations, which appear to oppose almost universally the provisions that would repeal those in part III of the Immigration and Asylum Act 1999. I note especially that the UNHCR believes that the provisions for routine bail hearings are essential to safeguard against arbitrary detention. That is why I share hon. Members' concerns. I understand that there are proposals to simplify the general appeal procedures. If so, there may be an opportunity to revise the system of routine bail hearings as part of that simplification process, which I hope the Minister will consider.

Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

I shall share with the Committee some of the thinking behind the decision to repeal the routine bail provisions in part III. As hon. Members pointed out, those provisions were never implemented.

I remind hon. Members that they would have required a first referral for all detainees in the system before the eighth day of detention, and a hearing before the 10th day. They would also have required a second referral by the 36th day of detention, with a hearing by the 38th day. They were not brought into effect, as we have been trying since the 1999 Act to work out the frequency and logistical implications of automatic bail hearings for each detainee. We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications. That would make it harder for us to complete the asylum process as speedily as all members of the Committee want.

We sometimes have to be open about such administrative decisions, and I intend to be open with the Committee. Implementing the part III bail provisions would significantly increase the burden on the Immigration Appellate Authority. If one listened to some people, one would think that no bail is allowed. Hon. Members have pointed out fairly that bail hearings can be granted under the existing system. Between April 2001 and March 2002, there were 8,498 bail hearings before adjudicators, of which 1,740 were granted. That is with a nominal removal estate of 2,800 places, and 700 hearings a month. It does not include the bail applications to immigration officers, as those records are not kept. We can assume, therefore, that more such applications are made that do not go to adjudicators. Those may be processed routinely and bail granted.

With the increase to 4,000 removal places, we estimate that under the existing arrangements there will be 12,000 bail hearings before adjudicators, which puts the figure up from 700 to 1,000 per month. In anticipation of putting part III into effect, we did a great deal of work to try to estimate what the implications would be of routine bail hearings for everybody in detention. We came to the conclusion that that would create a further 2,100 hearings per month. The Immigration Appellate Authority had a total of 74,144 hearings in the period from 1 April to 31 March 2002. Of those, 59,779 were asylum hearings, 8,206 were immigration hearings, 5,271 were visit-visa hearings and 888 were human rights hearings.

An average of 5,000 asylum hearings and an average of just over 6,000 appeal hearings take place per month. Were automatic bail hearings under part III of the 1999 Act brought into effect, the percentage increase would be substantial. That is why amendment No. 266, which would bring them into effect now, would grind the system to a halt.

We have to be honest and open about these issues. The administrative consequences of automatic bail hearings are substantial. Given the figures and the potential for bringing the whole system to a halt, it was our reluctant judgment that unfortunately it would not be realistic for us to introduce part III bail hearings. We thought it more open and transparent to repeal those provisions, as the amount of available funding and the priorities we have for getting asylum claims through the system would not allow us sensibly to

bring them into effect without that having an adverse or catastrophic effect on our system.

Mr Neil Gerrard (Walthamstow, Labour)

Those were very interesting figures, particularly the number of bail hearings that occurred in the year. That tells us something about the figure, which is often quoted, of 1,800 asylum seekers in detention at any one time compared with the number of people in detention at some point during their claim.

I have looked at the figures and weighed up possible actions. Rather than repealing this provision, have the Government considered keeping automatic bail hearings for people who are detained before an initial decision has been made on their claim, especially if the intention is that detention should mainly be at the end of the process?

Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

I hope that we are not mixing up the lawfulness of detention—which can be challenged by judicial review and habeas corpus—and decisions about compliance with bail conditions. The two matters are separate. Judicial review and habeas corpus exist for challenges on lawfulness. We have already had challenges on the Oakington process, which have now proceeded to the House of Lords.

Detained persons are notified of their right to apply for bail on the form that advises them of the reasons for their detention. They are also advised to contact either the IAS or the Refugee Legal Centre for free advice, and are given telephone numbers and information leaflets when they go into detention centres. To argue that they are ignorant of their rights would be wide of the mark.

Mr Richard Allan (Sheffield, Hallam, Liberal Democrat)

I am grateful to the Minister for her comprehensive response, and it is helpful to have the facts and figures. I have a couple of points to place on record, although I do not expect an immediate response. First, judicial review or habeas corpus procedures are not a substitute for bail hearings. The Minister accepted that they are different. I hope that she will not suggest that they would provide an alternative, because they are about lawfulness rather than bail conditions.

Secondly, if individual detainees are to be given reasons for their detention and told about their right to bail, that is a useful step forward from the 1999 Act. The Minister said that there would be huge administrative difficulties if the number of bail hearings increased, so how will it work? If individual detainees want to exercise their right to bail, and do so in increasing numbers, will that not have the same administrative effect as having automatic bail hearings?

Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

We are already planning for a substantial increase in the number of bail hearings, and I gave the hon. Gentleman the figure. That will come as a result of the fact that we have expanded the detention or removals estate—whichever description he wants me to use. We are already planning for a thousand hearings a month before adjudicators. The trouble with automatic bail hearings is their inflexibility and the sheer numbers of hearings that

would be imposed on a system that would already be experiencing increases. We considered those practical issues in great detail and decided, reluctantly or otherwise, that we could not run the system with automatic bail hearings for all detainees. That was our judgment, and we thought that it was more transparent to repeal the procedures in part III of the 1999 Act rather than leave them hanging around on the statute book, never being put into effect. Those are practical decisions that Ministers must sometimes make.

I was not trying to say that habeas corpus and judicial review are a substitute for bail. As the hon. Gentleman will know from my figures, there are many bail hearings already, and we do not record the ones made to immigration officers. They are not counted but they still happen.

Mr Humfrey Malins (Woking, Conservative)

I thank the Minister and applaud her honesty, but I am dismayed by her response. Since when have we sacrificed a principle because of administrative difficulty? We have heard moving contributions from the hon. Members for Edinburgh, North and Leith and for Walthamstow, both of whom agree that there is no need to repeal part III of the 1999 Act. Indeed, there is a strong need to implement it. How can the words of the Home Secretary in 1999, which I quoted earlier, not be valid today? The Minister was frank and said that the implementation would result in a logistical nightmare, but I repeat my question: since when have we decided that something is absolutely right but that we will resile from it because it is difficult? That is no way to proceed.

Labour Members know that my amendment is right and that not to support it would go against their consciences. They are experienced Members of Parliament and know that it cannot be right for a Minister to say, in terms, ''You may be right on the principle—I'm not even going to talk about the principle—but the fact is it's very difficult.'' If we move into that sort of world, where are we going?

This is one of the most serious moments of this Committee. The Home Secretary's words of February 1999 were important. It has been pointed out that many people outside Parliament believe that there is a strong need to implement part III. How can we send a message to the Government that they must do that and not hide behind the shield of administrative difficulty? If something is right, it does not become less right because it is difficult. I therefore urge everyone present to support the amendment, which is the only proper way to proceed.

Ms Angela Eagle (Parliamentary Under-Secretary, Home Office; Wallasey, Labour)

We have not sacrificed a principle because of administrative difficulties. There are already chances to apply for bail, many of which are taken up by people in detention. We have decided not to put into effect automatic bail hearings for all detainees on the eighth day, to be heard in court by the 10th day, or on the 36th day, to be heard in court by the 38th day, because that would mean an increase of 2,100 appeal hearings for the IAA, which currently manages 6,000. That would have major implications for the speed at which we can administer the asylum system.

The hon. Gentleman cannot tell us that we should be able to hear asylum cases from beginning to end in five weeks and then insist that we have automatic bail hearings at the same time. It simply is not credible. We are not sacrificing any principle. Bail is still available, but I have given the Committee the reasons why we have decided not to put part III into effect. When it was put on to the statute book there were 900 places for detention. We are now moving towards 4,000 places, and the implications of automatic bail hearings in terms of cost effectiveness and speed are too much for the present system. Those who wish to apply for bail can still do so, and in large numbers.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 9.