My Lords, in moving Amendment No. 28, I shall speak also to Amendments Nos. 29, 30 and 32.
In Committee, I welcomed the amendments tabled by the Government to set up advisory groups and a monitor. They introduce a limited form of accountability for the running of accommodation centres, which was certainly welcome.
However, I did say that I was concerned that this system of oversight might lack some teeth and that I would consult the expert bodies and consider whether we should do some more probing on the Government's intentions on Report. These amendments have been tabled to reflect some of the concerns expressed to me by organisations such as the UNHCR, the Refugee Children's Consortium and the Immigration Advisory Service over the summer.
I was pleased to hear the Minister yesterday on Report make a clear commitment that there will be a child protection policy in place in the accommodation centres. It was important to have that so clearly on the record. We need to have a clear indication of what the role of the advisory groups will be and what their remit will be in monitoring items such as the child protection policy. Will the advisory groups be able to monitor the legal rights of residents of the accommodation centres? If not, why not? Will they be able to monitor the effectiveness of the child protection rights?
Will the monitor also be able to report on the effectiveness of the Criminal Records Bureau checks carried out on staff who work at the accommodation centres, either directly employed or on a voluntary basis? Noble Lords will recall that yesterday we debated an amendment, which unfortunately I lost on a vote, which would have put in place enhanced protection for children in accommodation centres. Now we look at the issue of Criminal Records Bureau checks. Will all the staff be covered by those checks and what level of checks will they be, basic or enhanced? All these amendments are designed to protect those who are living and working in the accommodation centres. I beg to move.
My Lords, I rise to support these amendments. One question arises out of them, and I may not be in order asking it, but it is so relevant that I dare to put it to the Minister. It seems to me that, bearing in mind the legal problems that are likely to arise, and which will be part of the decisions of the members of the advisory groups, the chairman of each advisory group should be an experienced lawyer. If the Government have that in mind, at the Third Reading an amendment should be tabled in order to ensure it.
My Lords, these amendments have our support on this side of the House. We certainly support the duties placed on members of the advisory groups. The second amendment gives the Secretary of State power to make provisions for the training of members of advisory groups and the third amendment would mean that a requirement to undergo training could be a condition for the person being appointed.
These amendments are in line with similar provisions which have been made for members of various groups working in such situations. I refer here to lay members of the prison boards of visitors and lay members who inspect detention centres. The need for training is a crucial element. It is crucial in this instance because the advisory group members will be looking at whether the rights of individuals are protected. It is important that people are not simply appointed to pay a visit and make a report. They should learn about what are the rights and what is being done to protect them, and what the government and the monitor are doing about them. If they have any doubts whatever, they should bring them to the attention of the appropriate authorities.
The amendment imposes duties on members of the advisory groups, but these are duties they must carry out to fulfil their function. If the Minister contends that they will be lay persons not lawyers, the response is that the lay people are capable of understanding the law. The visitors groups for detention centres have proved it. If the advisory groups do not have a grasp of the legal rights of those in the centres, they are unlikely to be able to know what to look for when they visit a centre and are unlikely to be able to make useful reports. This is not only for the protection of those who are in such centres, it is as much for the protection of those who provide a service and for ensuring that accommodation centres are run with no-one's basic rights being impinged upon.
My Lords, is there anything in the amendment which could not be included in regulations? A great deal of common sense has been uttered from both Opposition Benches but I do not think anything is precluded in practice as regards what has been suggested. In other words, does it have to be in primary legislation?
My Lords, I should probably have traced the answer through the Bill, but I have not been able to do so in the time available, so can the noble Lord tell us whether these regulations will come to the House by a negative resolution or an affirmative one? This clause was introduced at the Committee stage in this House. It has not therefore been examined by the committee which looks at the powers given in secondary legislation on behalf the House. The questions that are being asked indicate that these regulations will be important and fundamental to the safety of people in the accommodation centres. It would be comforting to know that the regulations will come by affirmative resolution.
My Lords, some interesting and important points have been made on these amendments. I will start by making a few general remarks about how we see the role of advisory groups and therefore to what extent we feel they can address the issues raised. I will then speak about other ways in which we believe those issues will be properly addressed in the overall process of control and monitoring.
It is useful to look at what Sir Peter Lloyd, who chaired the review of prison boards of visitors, has said. Clearly accommodation centres are not prisons, but the principles of the prison boards of visitors in terms of having people going in there and trying to be ears and eyes, looking from the perspective of people who are in those places, is the foundation principle.
The report said that the boards of visitors should be concerned with,
"simply what all that is actually meaning to individual prisoners in their experience of prison and their preparation for release".
He went on to say that they should not aspire to be inspectors, auditors, consultants or non-executive directors.
The advisory groups will be listening to the concerns and complaints of individual residents and, more broadly, looking at the effects of the operation of the centres on residents as a whole. It is precisely the commonsense lay perspective that we need to provide reassurance as to the treatment of centre residents.
The advisory groups should be looking at the way the centres operate and the effects on individuals within them, and hearing what those individuals say about it, which may or may not be the totality of the truth. They are not there necessarily to make a firm and final judgment, but to convey feelings and concerns.
We want to recruit a wide variety of people as advisory group members. Placing a duty on them simply to focus on legal skills—although that clearly would not be ruled out—would be turning them away from the kind of role that we consider appropriate. It would require a considerable level of expertise in the law for them to be able to do the job of identifying whether, for example, the Legal Services Commission was effectively discharging its functions within an accommodation centre by the provision of legal aid.
However, quite clearly the advisory groups could and should relay concerns if they pick up from residents of accommodation centres that they feel they are not getting adequate legal advice; that they are not getting access to lawyers when they want them; that they are not getting the help and helpfulness they expect from an advocate on important issues. That kind of issue would be four-square within the remit of the advisory groups, which again is consistent with the perspective I have sought to give overall.
Similarly with child protection policies—I shall turn later to the other ways in which we shall seek to ensure the effectiveness of the child protection policies—the advisory groups would be commonsense eyes and ears. They would not quite befriend but would be available to people living in accommodation centres so that any concerns could be relayed to them.
The amendment in regard to the monitor is divided into two parts. I recognise that there are other points to which I must return, but the first part of the amendment would require the monitor to report on the effectiveness of the checks carried out on staff employed at the centres by the Criminal Records Bureau. I understand that the intention behind the amendment is to see whether the employers' checks are effective in precluding unsuitable people from working in accommodation centres. As the House knows, part of the problem with the checks is that if they are carried out well they should be able to pick up people who have records; but we know only too well that they cannot pick up the records of people who have not committed or been convicted of offences. Therefore none of us can feel that the checks are a complete answer.
However, the contractual requirements of the people running the accommodation centres will be such that the Home Office will approve every appointment to the accommodation centres if it is satisfied that the necessary checks have been carried out. The Home Office itself will have a fairly strong control process in that respect.
I can respond much more positively to the second part of the amendment, which requires the monitor to report on the effectiveness of the child protection policy operated by the centres. We intend the contract to specify that each centre must have a child protection policy in line with the local area child protection committee's policy. Although Home Office staff will monitor the actual operation of the contract, I agree that assessing the overall appropriateness and suitability of the child protection policy is something that could usefully be done by the monitor.
However, as my noble friend Lord Clinton-Davis said, I do not believe that this needs to be specified in the Bill. Clause 32(2)(c) already requires the monitor to consider the treatment of residents and, in subsection (3), to consult such other persons as he considers appropriate. In this way the monitor can consider the child protection policy in the context of the way residents are treated. He or she would no doubt wish to consider consulting the local authority and local area child protection committee to consider the nature of the accommodation centre's child protection policy in the light, for example, of the guidelines produced. We shall of course make the monitor's terms of reference available in due course.
For the reasons I gave earlier, I hope that the noble Lord, Lord Renton, will understand that while not for a second should a legally qualified chairman be ruled out, the function is not essentially a legal one. However, clearly a lawyer could be so appointed.
As to the levels of checks, I indicated that we would seek to ensure that the highest levels of checks that could be carried out on the relevant levels of staff would be. In short, that means an enhanced disclosure for those regularly engaged in caring, training, supervising or being in sole charge of children; a standard disclosure for those whose duties involve working with children at a lesser level—for example, administrative staff and staff working in the education facility—but who would have contact with children; and a basic disclosure for other staff—for example, cleaners, maintenance workers and administrative staff.
Under Clause 36(4), the regulations in regard to the advisory group will be subject to the negative procedure. I hope that I have now covered all the points raised.
My Lords, with the leave of the House, and before the Minister sits down, I would suggest to him that the negative procedure is not adequate in this case. The discussion has been partly about membership and the chairman of the group. We do not know from the Bill anything about what the membership of the group will be under the regulations. Will the Minister look at the issue to see whether it should be decided by the affirmative resolution?
My Lords, perhaps the most straightforward answer is yes, we will look at the issue—but I would not want to raise hopes. We will want to assess whether or not it is appropriate. I shall do so and I shall write to the noble Baroness on that point.
My Lords, I am grateful to the Minister for that helpful response. It has fleshed out more clearly what the roles of the advisory groups and the monitor will be. I may wish to return at some stage with questions in regard to the levels of checks that are to be carried out on the various grades of staff in the accommodation centres. I still have some concerns in that respect. I am grateful to the Minister for his indication that the second part of my Amendment No. 32 will be met and that the monitor will report on the effectiveness of the child protection policy operated by the accommodation centres. That is very good news. I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 31, which stands in my name and the names of my noble friends Lord Dholakia and Lord Greaves, I should declare a non-pecuniary interest. I am one of the patrons of the Association of Visitors of Immigrants in Detention, an organisation which does a great deal of good. I must confess to having participated in its activities rather less than I would have wished. For many years its annual general meeting has been held in the week of the Liberal Democrat Party conference. As a favour to me, the organisation decided this year to change the date—and found that it had picked the first day in Committee on this Bill. Naturally, it preferred me to be in this Chamber. However, I know enough to say that the organisation does a great deal of good, although in this world—whatever may be the case in the next—the peacemakers are not always blessed.
The effect of the amendment would be to take the powers in Clause 31(4) of the Bill—which allows members of the advisory groups to visit the centres and to visit any resident with his or her consent—and to make those powers a matter which can be a matter of report by the monitor. It is a small provision but it should be genuinely helpful.
Granted that the relationship between visitors, prison authorities and prisoners is essentially a channel of communication, it ought normally to be—and usually is—a peaceful, harmonious one, concerned with the prevention of conflict rather than its creation. But there always are exceptions. I remember one—drawn to the attention of the House by my noble friend Lord Avebury—where communications between the visitors and the governor broke down to such an extent that in due course it involved the attention of the Minister.
Such cases will always be rare. My hope is that the involvement of the monitor will make them even rarer. The monitor will be able to listen to both sides, to abide by the principles of natural justice and to reach a reasonable compromise, thus defusing trouble before it breaks out. That is why I hope that the amendment is uncontroversial. I hope that it may even commend itself to the Minister. I beg to move.
My Lords, I support the amendment. All the amendments that we are presently considering are in the interests of greater accountability and of involving as wide a section of the community as possible in observing and "critiquing" the life and work of accommodation centres. I am glad to offer my support.
My Lords, I am grateful to the noble Earl for moving the amendment. It is helpful in the context of what we are attempting to achieve in the Bill. As he suggested, it would require the monitor of accommodation centres to consider in particular matters raised in reports by accommodation centre advisory groups. That in itself seems a sensible thing. It is what we should expect to happen.
The monitor is required to monitor the operation of Part 2 of the Bill. We have set out on the face of the Bill three aspects that he will need to consider in particular; namely, the quality and effectiveness of accommodation and other facilities provided, the nature and enforcement of conditions of residence and the treatment of residents. In considering these aspects, the monitor will be required to consult the Secretary of State and such other persons as he considers appropriate. We expect that requirement to be fairly widely drawn.
In addressing the amendment, we need to consider what matters might be incorporated in reports made by the advisory groups. We want the advisory groups to visit the centres and listen to the complaints of residents, and to ensure that those complaints are properly addressed. We feel that the advisory groups' reports will, by their very nature, focus on the ways in which individuals feel they are being treated within the centres, on whether any concerns have been acted upon, and on whether residents feel able to express any concerns or know how to do so. They will help us to understand how the residents are affected by the conditions of their residence and whether they feel that the facilities available meet their needs and are open to them. I imagine that they will in particular express views about how usefully their time is occupied and any concerns that they might have about the quality of their accommodation.
So given that the monitor will be looking at these issues as part of his remit, I think it would be impossible for him to ignore the matters that will undoubtedly be raised in any reports from the advisory groups. For that reason, I do not see that the amendment would add to what is already envisaged.
I also emphasise that the monitor will consult such other persons as he considers appropriate. As I said, we should expect that remit to be fairly widely drawn.
It may well be that the point made by the noble Earl in his amendment could be better and more accurately reflected in the terms of reference or the "job description" of the monitor. That would be where it would be better placed, rather than on the face of the Bill. If the noble Earl would see that as a welcome step, we should actively consider it. We believe these matters to be very important.
In overall terms, we will pay close attention to reports made by both the monitor and the advisory groups. We believe that the existence of these groups will be invaluable and that it will play an important part in establishing an independent view of how the accommodation centres are working. They will, of course, help to form part of the overall evaluation of the trial and during its course enable us to pick up on the areas that are working well. They will help us to learn from the successes and enable us to tackle those areas where the centres are not as effective. I hope that with those assurances, which are genuine ones, the noble Earl will feel able to withdraw his amendment.
My Lords, I thank the Minister warmly for that reply. He makes a serious case for arguing that the objective of the amendment can be achieved without placing it on the face of the Bill. I am also aware of the points that the noble Lord, Lord Renton, has often made about the danger of cluttering up the face of the Bill with too much detail. Those are serious points. As I think that the Minister is right, and as I am certain that he makes the offers in good faith, I shall beg leave to withdraw the amendment. I hope that we are both right.
moved Amendment No. 33:
After Clause 32, insert the following new clause—
(2) The report shall include an impact assessment of each Accommodation Centre upon the locality in which it is sited taking into account its effect upon the local availability of medical, social, and transport services and upon the ecology of the area."
My Lords, during our debates on accommodation centres yesterday, I made it clear that I do not believe that the Government have set about establishing them in a manner which will prove to be fair and effective both to those who are seeking asylum here and to those who live in the local communities near the large accommodation centres.
The Government inserted the new clauses into the Bill in Committee which established the monitoring system for accommodation centres and, of course, we support it. But my reason for tabling this amendment is to point out that the duties of the monitor as set out in Clause 32 are concerned solely with the internal operation of the accommodation centres. One vital element of accountability is missing so far, and the amendment attempts to fill that gap.
I believe that the Secretary of State should be required to make an annual report to Parliament to give the details of the measures that he has taken to establish the accommodation centres, whatever model they might be. This would mean that he would have to explain the steps he had taken to discover what kind of accommodation centre was suited to what kind of area and to the people who would live in it. Only on the basis of such a report can we measure whether the Government are approaching the trialing of accommodation centres seriously and competently.
The second part of my amendment places a duty on the Government to carry out an impact assessment showing the effect that an accommodation centre, once built, has had on the local availability of medical, social and transport services. It also requires an assessment of the impact of the centre on the ecology of the area.
Such a provision is vital in ensuring that the Government take all proper factors into account when building centres after the initial three have been launched. We were originally told that that would be in 2003, but rumours are that it will be in 2004—the Minister himself referred to the fact that the date had drifted.
The fact remains that, wherever such centres are built, they will have a significant impact. At present, we do not know whether that will be just as much for the good as for anything else. We have to look at the positive aspect too. It is right that, over time, Parliament should have the opportunity clearly to hold the Government to account on where accommodation centres are sited. I beg to move.
My Lords, I hope that the Government will accept this amendment. The accommodation centres will be of great public importance. They will cost a great deal of public money. That is one factor to be borne in mind. Another factor is that they will have an effect on asylum seekers and enable the Government to decide whether they are genuine. They will provide a chance for the merits of asylum seekers to be considered one way or the other. If there is no report to Parliament by the Secretary of State, the whole system will have failed to fulfil its public importance.
My Lords, very much for the reasons referred to by the noble Lord, Lord Renton, I am slightly puzzled by the drafting of this amendment. No one is suggesting that the regular reports, which are a very interesting idea, should not make reference to the impact on the local community and services. I am sure that that would be an important ingredient. However, I am mystified that there is no reference in the amendment to the impact on the residents of the centres, the role that the centres play in helping in a humane way to achieve their purpose and the theory behind their existence, or the fulfilment of government policy as a whole. I suggest that those who moved the amendment take it away and think about that. It would be unfortunate if this House went on record as saying that it was interested only in the impact of the centres on the local community.
My Lords, I support the amendment. This morning, I indulged myself in the pleasant occupation, which is probably much followed and well known to Members of your Lordships' House, of looking through yesterday's Hansard to read one's own contributions. When I got to mine, which is at col. 294, I found to my horror that throughout my short intervention I spoke about attendance centres rather than accommodation centres. I wish to correct my mistake and to assure the House that I was well aware that the debate was about accommodation centres and not attendance centres.
I add this one thought: the fact that I made the same mistake five times in a speech of less than one column's length leads me sadly to the conclusion—and I am sure that it is the right one—that since nobody intervened to correct me, nobody thought that anything I said was worth listening to at all.
My Lords, this amendment has our support also. I assure my noble friend Lord Carlisle, with whom I have worked in other capacities, that when he referred to attendance centres we had no doubt whatsoever that he meant accommodation centres. We listen very carefully to what the noble Lord says.
The argument of the noble Lord, Lord Judd, was interesting. However, having looked at Clause 32, it is clear that information on the impact on residents and local services is provided by the advisory groups and the monitor himself. The monitor is expected to report to the Secretary of State, and that information will be laid before Parliament. One has no difficulty with that, because when any such report comes before Parliament, I am sure that I, the noble Lord, and others, will jump to make sure that right and proper services are provided at the accommodation centre.
Interestingly, I see no evidence in that part of the Bill about the obligation of the Secretary of State in relation to the interesting and lengthy debate that we had yesterday about accommodation centres. All Members from all sides of the House expressed serious concern not only about the size and location of centres, but about services and other related elements. It is right and proper that the Secretary of State should be accountable, reporting to Parliament on precisely what is happening and on the impact of the centres. On that basis we will be that much wiser. Reports will be published at some stage to detail the precise effect of the pilot schemes.
My Lords, I am grateful to the noble Lord for giving way. Is he really suggesting that among busy Ministers and senior administrators a sound evaluation of what is happening will really be helped by a confusion of different reports from different quarters? Surely, the job is to look at the centres to judge their effectiveness and their consequences for both the local community and the inmates.
My Lords, I have no difficulty with what the noble Lord says. Ultimately, we will probably receive a filtered version of what finally emerges. A total picture will be given, but the obligation on the Secretary of State to produce such an impact statement or report is very important, bearing in mind the interest shown by your Lordships' House in the discussion on accommodation centres yesterday. We support the amendment.
My Lords, I am grateful for the opportunity to speak to this amendment. I have much sympathy with what the noble Lord, Lord Judd, has just said. Perhaps the amendment, if passed and recognised, could be extended.
During yesterday's debate the Minister stressed the need to make provision for the future in accommodation centres. Although there is no question of not trusting the Secretary of State, if I, in the diocese of Portsmouth, were running a new initiative, I would expect to be accountable to my diocesan synod. This amendment is highly correct and appropriate, and I hope that it has the support of the House.
My Lords, I do not understand why the second part of the amendment cannot be covered by Questions, oral or written. We do not want to be suffused by a whole plethora of reports. Not for the first time, I agree with my noble friend Lord Judd. Although we should, of course, see what the Government have to say on the matter, I do not think that the amendment is right, particularly subsection (2).
My Lords, before the noble Lord sits down, I hope that I am in order to say that surely if there is to be a report to Parliament, it must be on the effect on asylum seekers of living in accommodation centres and on the effect on local people. Surely Parliament should not be deprived of either conclusion.
My Lords, I have been asked a question, so I hope that I will be allowed to answer it. If anybody has any reservation about this point, they will let Members of Parliament and noble Lords know. I do not depart from my point about the plethora of information that would come before noble Lords and others which I do not think would be helpful.
My Lords, most amendments, like most Bills, are capable of amendment. The noble Lord, Lord Judd, has suggested some minor improvement to the amendment. Nevertheless, the kind of reports called for by the amendment should prove to be a useful tool for post-legislative parliamentary scrutiny, for which so many people have called for so long.
If the accommodation centres come into being, we want to know how effective they are and their impact on the places where they are situated.
My Lords, there will be a great need from the start for careful public relations on accommodation centres. The people in the neighbourhood will want to know whether it is succeeding in what it is supposed to be doing. If there are good public relations they will be keen to play a part in helping people through their time in the accommodation and probably after in some cases. Such a report, which can be made available in the local community, will be an opportunity for that. To that extent it is a very good idea. I do not know whether my noble friend minds too much about the wording of her amendment. I have not asked her. Her idea leads one to think that the Secretary of State should think about how he will conduct local public relations—he is the one to do it—to make sure that local people understand what is going on. If there is a problem with medicine or the availability of doctors, for example, they will want to know how it is being handled to keep everyone in the area happy.
My Lords, there is a subtlety here that we have all missed. Yesterday the noble Baroness told us that the Secretary of State should be satisfied that the proposed location is suitable to the needs of the people in the accommodation. That was yesterday. Today he has to be sure to worry about people affected by the location. He will get it wrong either way.
My Lords, I am utterly four-square on the importance of the Government being available to give an account to Parliament about the operation of the centres. Before I go into the detail, we heard every word that the noble Lord, Lord Carlisle, said yesterday. We had heard "attendance centres", but we knew exactly what he meant. Perhaps, like me, he finds that Hansard is not very good at capturing what I meant to say, as opposed to what I did say, which is always a difficulty.
On the specifics, perhaps it might help if I say something about how we envisage the evaluation of the trial accommodation centres being undertaken. The White Paper in February set out a series of evaluation criteria against which we would test them. It would be impossible to do this without looking at the associated issues that may contribute to the effect on the locality, either positive or negative—or, given how life is, most likely both positive and negative—and the effect on community relations. It is likely to include matters such as local residents' perceptions of asylum seekers and the impact of their use of local services. There will undeniably be an impact. We hope that it need not be overall a negative one. In fact, we are quite optimistic. We certainly do not expect them to place a burden on local services, given the points that we have emphasised in the Bill about them being designed explicitly in part to avoid that. We shall also evaluate the effect on those areas and compare it, as far as we are able through research methodology, with the alternative of dispersal to make a judgment in the round. We envisage that the evaluation will include a combination of management information and consultation with people and more formal research carried out by independent researchers under contract to the Home Office. The Home Secretary is on record as saying that long-term decisions about the mix of facilities will depend on the evidence of what works.
The results of the accommodation centres evaluation will be publicly available and will clearly be made available to Parliament. I shall go further than that. We are happy to provide interim results after the first centre has been in operation for a full year. As a number of speakers have said, over and above that commitment there are many ways in which this House or another place can probe Ministers on the issue, through Starred or Unstarred Questions. We have no trouble with that. Quite the reverse—we would welcome being open about the objective evaluation and scrutiny of the centres. We are committed to putting information about them into the public domain.
I respect the spirit of the amendment, but the problem is that it would require us to make an annual report on the impact of each accommodation centre every year, by definition. While one can understand the eagerness to have early information—I hope that what I have said will help—after a while that would become an enormously burdensome process. We do not require prisons, mental hospitals or immigration detention centres to make similar annual reports.
"A person who is employed within a government department may not be appointed as Monitor".
The monitor's report will also be laid before Parliament. We expect that monitoring of the operation of Part 2, which the monitor is obliged to do, will include the relationship between the centre and the local community. The monitor is obliged to consult such persons as he or she considers appropriate. We anticipate that that may include police and local authorities, for example, but it could also include local residents or representatives if the monitor judged that that was appropriate.
I have not responded explicitly to every point, but I hope that I have captured the broad thrust of the points made. We welcome an evaluation. We think we can meet the thrust of what the noble Baroness, Lady Anelay, has said in the ways that I have set out.
My Lords, I am most grateful to the Minister for that extremely helpful reply. He has met the concerns that led me to table the amendment. I thank those who have participated in this short debate. I say to the noble Lord, Lord Judd, and to the right reverend Prelate the Bishop of Portsmouth that I was simply trying to plug a gap. My understanding before I tabled the amendment was that the concerns that they expressed about the conditions experienced by the residents would be met by other reports. It never occurred to me that they would not. That is why I welcomed the Government's amendments in Committee to Clauses 31 and 32. They provide a welcome monitoring of the conditions to be experienced by asylum seekers in accommodation centres.
I do not know whether I should remind the Minister of painful events for him yesterday, but I shall bludgeon on. The purpose of my Amendment No. 12 yesterday, which the House carried, was to concentrate on the needs of those who live in accommodation centres. Their needs are very much in my mindset.
I thank the noble Lord, Lord Desai, for thinking that I might be subtle—well, one day, perhaps. I was just trying to be logical and plug that gap. The Minister has provided me with the ideal opportunity to beg leave to withdraw the amendment.
moved Amendment No. 36:
After Clause 35, insert the following new clause—
(1) A local authority may in accordance with arrangements made by the Secretary of State—
(a) assist in arranging for the provision of an accommodation centre;
(b) make premises available for an accommodation centre;
(c) provide services in connection with an accommodation centre.
(2) In particular, a local authority may—
(a) incur reasonable expenditure;
(b) provide services outside its area;
(c) provide services jointly with another body;
(d) form a company;
(e) tender for or enter into a contract;
(f) do anything (including anything listed in paragraphs (a) to (e)) for a preparatory purpose.
(3) In this section "local authority" means—
(a) a local authority within the meaning of section 94 of the Immigration and Asylum Act 1999 (c. 33), and
(b) a Northern Ireland authority within the meaning of section 110 of that Act."
My Lords, I have one question for the noble Lord about the amendment. Due to my own incompetence, I was not in the Chamber when this group of amendments was discussed. Does subsection (3)(a) of the amendment mean that the whole amendment applies to Scotland? I think it does, but I may be wrong. If it does, have the Government considered whether local authorities will be able to provide services across the border? I am sorry not to have warned the noble Lord that I was going to ask this, but it is quite important. The amendment and others in the group suggest that local authorities should be able to provide services widely over many areas and can co-operate. Could that be done across the border? It might be quite confusing, because local government is a devolved matter in Scotland.
My Lords, first I should like clarification that Amendments Nos. 34 and 35 are consequential on yesterday's debate and vote and that Clauses 34 and 35 are therefore omitted. I do not want to rub salt in the wound; I just want to learn the rules. I assume that that is the case.
Amendments Nos. 37, 39 and 40—but not Amendment No. 38—would remove all powers to detain children under 18 and would ensure that children were not detained as the consequence of an adult being detained. The amendments would also ensure that families were not split up by stipulating that no persons should be detained if the result of that detention is the detention of a minor.
The right reverend Prelate the Bishop of Derby moved a similar amendment in Committee on 17th July, when a number of noble Lords expressed concern, including the noble Lords, Lord Avebury and Lord Judd, and the noble Baroness, Lady Anelay. I also recall a debate in this House two and a half years ago during which the right reverend Prelate the Bishop of Southwark, who is next to me now, spoke movingly about the children of asylum seekers.
The amendments have been altered since July to ensure that the detention of children in all circumstances is covered, whether by the Home Secretary or by the Immigration and Nationality Directorate. I am concerned that the United Kingdom detains children and that the Government are now treating it as a positive and seemingly desirable policy. Children seeking asylum are particularly vulnerable and considerations of their best interests should always be our primary concern. They should not be placed in institutionalised settings that may hinder their development and cause them even more psychological harm. I should like to turn first to this question in principle and then to some of the related outworkings.
There is international consensus that children seeking asylum should not be detained. In its preamble, the United Nations High Commissioner for Refugees' Guidelines on Refugee Children states:
Children who are placed in detention centres have broken no laws, whether criminal or civil, with the exception perhaps of immigration offences. Their only crime will be that they and/or their family members have claimed asylum or otherwise sought to remain in the United Kingdom. Apart from children seeking asylum, the only children in the UK who are deprived of their liberty are children convicted of a criminal offence, those subject to a secure accommodation order made by a family court, or those detained under the Mental Health Act 1983. There are statutory criteria that must be fulfilled before detention is permitted in such cases, but that is not the case with the detention of children seeking asylum.
In contrast, children seeking asylum are sometimes not even detained under immigration powers, in cases where no detention orders are served upon them. In other words, they are subject to constructive detention. The question of the detention of the parent is considered first without giving attention to the best interests of the children, and it is then presumed that it is in their best interests to remain with their parents. If the parents are consulted, they are told that the alternative would be the placement of the child in care while they remain in detention. There are no legal safeguards in place to prevent immigration officers acting in an arbitrary manner when making decisions on whether or not to detain families.
I regard that as not only wrong but misguided. The first consideration should be what is best for the child. Is it better that they live with their parents in the community, or better that they are accommodated in a detention centre? If this question were asked, in my view the answer every time would be that it is better for children to live in the community where they can enjoy school and all the rich experiences of childhood that are denied them in detention centres.
I should like now to turn to the Government's thinking, where it is noticeable that there has been a shift in the language they use on the detention of children. Over the past year, policy has moved away from the position in the 1999 asylum White Paper—that detention of families should be strictly limited and for the shortest possible time—to the policy in this year's White Paper, which endorsed the policy of detaining children in asylum-seeking families prior to removal and made a vague and open-ended statement about detention in other circumstances "where necessary".
The amount of accommodation for families within the detention estate is rapidly expanding, and the Government's approach has altered so much that they now do not distinguish between the detention of adults and the detention of families with children. The need for this policy change is unclear, and children's charities such as Save the Children and the NSPCC and refugee organisations also believe that it is unnecessary and undesirable.
Those who work with children in detention have documented the emotional and psychological effect of imprisonment on children. A number of us have had the chance to hear more of what the teachers had to say, at the meeting on Tuesday night, and what the students themselves had to say, at the meeting at lunchtime yesterday. Children report feelings of fear, anger and confusion that they are detained without having done anything wrong. They also report problems relating to being incarcerated with adults. We must keep hold of the fact that the average length of time of detention is 11 months; the dream is two months, but that is the reality. Children also report problems relating to the lack of information and inappropriate living conditions. The process of detaining a family can be very distressing and frightening for children. Children in detention centres are often extremely subdued and confused.
The organisation Bail for Immigration Detainees has put together case studies that demonstrate how children in detention suffer disruption to their social life and education with a negative effect on their physical and emotional health. Some of the families that BID spoke to had experienced attempts to remove them that had been stopped. In one case, the pilot refused to fly the family "home", or rather back to where they came from, because of their medical state. The children and parents were terrified both by the process of detention and the level of violence being used in attempts to remove them—violence witnessed by their children. That is one instance. There may be others, or there may be good practice elsewhere.
I should like to tell the House about a family that spent about 60 days in detention. The whole family—mother, father, daughter and son—were detained after more than one and a half years in the UK during which time they had remained in contact with the immigration authorities. Both children were in primary school before they were detained and are now missing school due to ongoing detention. Both parents are suffering from depression and stress. The detention of this family has put the daughter under considerable pressure as she has taken on the responsibility of communicating with third parties on behalf of her parents whenever an interpreter is not available. The family have reported that they experienced violence in the process of being detained and in the airport when unsuccessful attempts were made to remove them. The mother told BID,
"My son he wakes up when the officer comes at night. They open the door with a key and they count us. My son wakes up and is afraid. Because on the [day] when the immigration come to our house, we were sleeping, and they come to my son's room very loudly. He thinks every time it's the police. My son ask me all these questions—'Why police put us here?' My son's school was not finished on that date [when they detained us] and he's very worried about that".
The daughter said,
"My brother was in reception class. He always talks about his friends. He couldn't bring any of his toys from the house and he really misses his toys. And I'm really bored as well, because there's nothing for me to do. In the male section there's an activity room, and there's some computers. But I'm not allowed to go in there. I'm the oldest—there's nobody my age in the family part, and there's nothing for me to do. I was in year seven before ... I liked it".
Because, my Lords, many of those whom I met yesterday, for example, were over 18. In my view, they need this safeguard.
That story demonstrates that the well-being and development of the child should be our overriding consideration. In other words, if it is thought that living in certain institutional settings may damage children, then they should not be placed in those settings. This is the policy that the Home Office pursues in respect of the babies of women in prison. The Home Office considers that prison is not the best environment for young children, and babies are therefore taken from their mothers by the age of six months. However, the same government department that believes that prison is not the best environment for children, to the extent that it is preferable to separate them from their mothers, maintains that it is justifiable to place children in detention centres.
Yesterday, when we debated amendments on the education of children of asylum seekers, I mentioned the opposition of the leading children's charities. I should like to add today that, contrary to what the noble Lord, Lord Bassam— undoubtedly with the best of intentions—implied in this House on 17th July, the NSPCC is totally opposed to the detention of children. Yesterday, I also suggested that some would oppose the education of children of asylum seekers in the accommodation centres on grounds of principle or practicality or both. Noble Lords might be tempted to regard the amendments that are before us as being concerned only with principle and not practice. I beg noble Lords to consider that they are about both. Is it right to detain children in these centres and is it desirable to create another tier of services and welfare provision for children?
I conclude by saying that the measure of how we treat children seeking asylum should be whether or not this is the treatment that we would want for our own children. Would we want our own children to spend open-ended periods of time in detention centres? Do we think that detention centres provide an environment conducive to a child's development—an environment in which a child would be most happy? The answer to both those questions is surely no. If it is not good enough for our children, it is not good enough for any child. The Government should end the detention of children and their families as soon as is practically possible. I beg to move.
My Lords, I wish to speak to Amendment No. 38 which stands in my name and is grouped with the amendments just spoken to by the right reverend Prelate. It operates on a much lower but none the less important level than those that we have just heard addressed, albeit it is a drafting amendment. It need not take much time to consider. I speak to it in the interests of simplicity and, therefore, in the interests of the reader and the user of the Bill.
"a decision by the Secretary of State whether to give directions" regarding that person's entry or removal, or, secondly, in subsection (1)(b), pending the removal of that person pursuant to such directions. In subsection (1)(b) the reader sees the words "under that paragraph". Back he goes, therefore, to subsection (1)(a) where he sees that there are three paragraphs there specified. So, do the words "that paragraph" in subsection (1)(b) relate to any one in particular? What do they relate to? It would be far simpler to say "the material paragraph". Actually, the phrase "any such paragraph" would have been better but I did not think of that in the somnolent days of summer. It would certainly be much simpler to say "under the material paragraph".
If one takes a tortuous and a painful audit trail through the syntax of the clause as drafted, one can perhaps conclude that the syntax is sound, but it is certainly not simple. Why cannot we be simple? I hope that the Minister will be able to accept this brief and simple amendment.
My Lords, returning to the previous amendment, I shall try not to repeat the strong arguments made by the right reverend Prelate as this is a fairly old chestnut. However, like many old chestnuts, it is durable and will return.
The Government recognise that it is wrong to detain children and that we should be talking only about the exceptional circumstances. However, I wish to take up the point made by the noble Lord, Lord Bassam, in Committee about separating the family,
"which is likely to cause the children needless distress".—[Official Report, 17/7/02; col. 1240.]
As the right reverend Prelate has already pointed out, how does the Minister square this with official Home Office policy that even very young children of prisoners—babies over six months old—should not be brought up in prison and must be separated from their mothers? The child has committed no offence and the environment of detention, the lack of facilities and education are incompatible with standards of living which we are normally prepared to guarantee.
I hope that the Minister can say again how the Bill is compatible not only with Article 37 of the United Nations Convention on the Rights of the Child on detention—which is clear—but also with Article 3(1). The best interests of children, as the Children Act intended, are to be considered separately from those of adults and the Government cannot hide behind the notion of separated families. The Joint Committee on Human Rights reminded the Government that the best interests of children are not just an important factor to be considered but are to be,
"treated as a primary consideration" and therefore "highly important".
Children in detention have already suffered trauma in some form, as we heard yesterday. Now they have to suffer further disruption and disappointment that we, the UK authorities in whatever form, have let them down. Evidence from case studies—some have been quoted already by the right reverend Prelate—shows that detention has physical as well as psychological effects on children, including stress and sickness leading to loss of weight.
I have two case studies which describe those effects on children in detention but I shall not quote them now as I believe that we have heard enough individual case studies. However, both families suffered some rough handling and even violence at the time of detention. In one of the case studies a family with two children, both aged under seven, was detained when they received a final decision after six years in the UK. In the other case study a family was detained for 81 days before the mother and children aged seven, three and two were finally released. Their father is still being detained.
It is worth noting that in neither of those cases had any member of the family attempted to abscond or failed to comply with the conditions on which they were granted admission. In both cases the power of the authorities to use their "discretion" to detain children for indefinite periods under the same criteria as adults has led to prolonged periods of detention without independent review. We are not just talking of exceptional circumstances for a few days. We must be clear about that. In neither case had alternatives to detention, such as reporting restrictions, been considered.
Just last week concerns about the UK's policy on detention were expressed again by the UN Committee on the Rights of the Child—the committee which oversees implementation of the convention. Reporting on the UK's progress in implementing the convention, the committee recommended that the UK,
"refrain as a matter of policy from detaining unaccompanied minors and ensure the right speedily to challenge the legality of the detention in compliance with article 37 of the Convention. In any case detention must always be a measure of last resort and for the shortest appropriate period of time".
My Lords, I, too, support the amendments spoken to by the right reverend Prelate. I shall try to avoid rehearsing the arguments made in Committee.
To some of us it seems self-evident that if we treat children seeking asylum as children above all else, we should not detain them. Detention centres cannot afford any child the care and protection that he needs. They are never the best environment for children and may have serious negative effects on their physical and emotional health and well-being. That principle is clearly acknowledged by the Government in the official guidance given in the Children Act 1989 in relation to the making of secure accommodation orders for children. It states that:
"Restricting the liberty of children is a serious step which must be taken only when there is no genuine alternative which would be appropriate. It must be a 'last resort' in the sense that all else must first have been comprehensively considered and rejected".
The Minister has not made any case that I am aware of that the intention is that detaining families in detention centres should be used only as a last resort. What this demonstrates is that the Home Office is prepared to apply different standards to children seeking asylum than are applied to other children by other government departments. Such discrimination against a class of children who have committed no offence undermines the integrity of our legal system, which is based on justice for all.
Unlike the noble Earl, Lord Sandwich, I propose to quote from a case study, which deals with the point raised by the noble Lord, Lord Clinton-Davis, who said that the other case study did not refer to young people. This case study illustrates the effect that detention can have on children. It was provided by the mother of two children, one aged six years and the other 18 months, who were detained for 111 days. After being released from detention, the mother said,
"they didn't learn anything, they had a play room. The older one was really upset, she was saying every day, 'I want to go to school, let me out of here'. She had problem with her mouth. They have seen her but they can't do nothing. And she was 30 kilos before detention centre, and when I got out from detention centre she was 21 kilos. Actually she was suffering so much from detention centre".
The family was finally released on adjudicator's bail and has since reported regularly, as required by the court. The elder daughter missed two terms of school and took six months to regain the weight she had lost in detention.
I question whether that is a humane way to treat anyone, adult or child, although our responsibilities towards children are greater. They have not chosen to come here; they are vulnerable and dependent. It is surely consistent with our belief in justice and humanity to ensure that the children of asylum seekers who are waiting for a decision are with their family and in an environment that will in no way harm them; on the contrary, it should help to meet their particular needs and foster their development. A detention centre is no such environment. It should not, therefore, be the home of any child, however temporarily, and no persuasive justification for such detention and such discrimination has been provided by the Government.
My Lords, when the right reverend Prelate moved the amendment, he discussed the expansion of the detention estate relating to children. I want to probe the Government in that regard. I believe that there are currently 150 family beds in the detention estate, which contains 2,000 places altogether. The Government propose to expand the total detention estate to 4,000. How many places will be for families in that enhanced total?
I am informed that there are currently five family rooms in Tinsley House with five beds each and 16 in Dungavel with three to four beds each; Harmondsworth makes up the balance of 150 beds for 30 to 40 families. I believe that that information was given in a Written Answer in another place on 17th July.
What is the purpose of increasing the estate so that we can detain more and more families with children? At the time of the White Paper, detention of families with children was to be done in wholly exceptional circumstances and for the shortest possible period, as the right reverend Prelate reminded us. Suddenly and with no explanation whatever, the policy changed in October 2001 so that families with children could be detained on almost any criteria whatever; that is what we are being asked to accept if the right reverend Prelate's amendment is not agreed to.
The operation enforcement manual allowed the detention of families for only a few days prior to removal. That was the situation until October 2001. Will the Minister explain—if he is able to do so—what changed in October 2001 to make it suddenly necessary to detain? I happen to know that there is no statistical evidence for that whatever in terms of families absconding. When noble Lords and honourable Members tried to obtain figures showing the objective justification for detention, Ministers were not able to answer.
The current situation was described in a letter of 27th September from Simon Barrett of the Detention Services Policy Unit. He confirmed to Bail for Immigration Detainees, to which we are indebted for much research work relating to the amendments, that:
"There are no separate criteria for the detention of families with children".
That is shocking, my Lords. We are proposing to detain children without regard to any of our obligations under, for example, the UN Convention on the Rights of the Child, which has already been mentioned.
I draw the attention of noble Lords to another part of the concluding observations of the report on the United Kingdom and Northern Ireland that was recently published by the Committee on the Rights of the Child. It reiterated its belief that the UK's reservation about the UN Convention on the Rights of the Child in respect of immigration and nationality legislation,
"is against the object and purpose of the Convention".
In other words, it said that that is an illegal reservation. It drew particular attention to the need to end discrimination against children seeking asylum and to establish their best interests as the paramount consideration in cases involving them. Of asylum-seeking and refugee children, the committee said that it was concerned,
"that detention of these children is not compatible with the principles and provisions of the Convention".
Detention of children under immigration legislation powers must stop, full stop.
My Lords, it is right to spend time discussing the detention of children. As a general principle, we would all wish that it could be totally avoided in this circumstance—or in any other, for that matter.
As I listened to the moving story told by the right reverend Prelate—I invite my noble friend the Minister to respond to this—I assumed that the family in detention whom he mentioned had had their application for asylum refused, had been through all of the appeal processes and had been told that they had to leave the United Kingdom. I also assumed that a country had been found—presumably the country from where they came—that was willing to take them back. I assumed all of that. In those precise circumstances, a family has exhausted all of the appeals and is told, "Look, we are terribly sorry, but you must leave the United Kingdom by this or that date". Will my noble friend clarify whether the family can then say, "Okay, give us a week"—or a fortnight, a month or whatever—"and we will leave by whatever date"? If so, that disposes of the problem. Alternatively, in circumstances in which it is felt that the family will not voluntarily leave the United Kingdom—or, indeed, they may have said that they will not voluntarily do so and a decision is taken to put them into detention—are the parents in that case given the opportunity to say whether or not they would prefer the children to be taken into detention with them or to have the children separated from them and taken into care?
Many assumptions are being made in this context. As I listened to the contributions of a number of noble Lords, I thought, "What would I do if I were faced with exactly that circumstance?". As a father and grandfather, my strong feeling is that I would want my children with me. That is my view. I do not believe that I should take that decision for other families; that decision belongs to those families. Will the Minister be kind enough to clarify what happens in that situation and whether choice is available for parents who find themselves in that unhappy position?
My Lords, Amendments Nos. 37, 39 and 40 to Clause 55 would prevent the detention of certain persons under the age of 18 who were subject to further examination at a port of entry or who were deemed to be illegal entrants. They would also prevent such persons being granted temporary admission or release. The powers to do so in paragraphs 21 and 22 of Schedule 2 to the 1971 Act flow from the liability to be detained, which would be removed by these amendments. Thus, such people could not be detained, released or temporarily admitted, subject to reporting or residence requirements. They would be in limbo as a result.
Turning from the legalities to the substance of the amendments, our current policy on the detention of minors is clear. It is, of course, regrettable to have to detain those who are under the age of 18. But there are two limited circumstances where we may decide to do so and where, I suggest, it is entirely appropriate that powers should continue to be available to do so.
The first is where it is considered necessary in line with our policy to detain a family with children. In such cases, it is surely better for the children to be detained with their parents rather than to be separated from their families. In that case, to suggest that families should not be detained at all is simply unrealistic in the world in which we live. They may need to be detained while their identities or basis of claim are established because they are unlikely to comply with the terms of temporary admission or release. It may also be necessary in order to effect their removal or as part of the fast-track asylum process at Oakington reception centre. These amendments would either prevent that in all cases or would simply require the separation of parents and children. Neither is desirable.
Secondly, there are exceptional circumstances where it is necessary to detain an unaccompanied minor while alternative care arrangements are made. That would normally occur only overnight and with appropriate care facilities. Our view is that it would be vastly better, wherever possible, to place such children into the care of a responsible adult—a relative—or for social services to take charge of them, as is clearly what would normally happen, the following day. But sometimes people arrive in the middle of the night, and the Government do not accept that it is appropriate to turn them out on to the streets in such a situation.
Therefore, I am afraid that it is simply unrealistic to suggest that families with children should be exempt from detention. That would be a severe hindrance to effective immigration control and, in terms of the asylum process, would prevent families with children passing through the fast-track process at Oakington reception centre. More generally, effectively it would prevent the removal of families with children who have no lawful basis of stay here but who are not prepared to comply voluntarily with the removal directions. In terms of the minds of the traffickers, I invite the House to reflect upon the effect of that with regard to the potential attractiveness of the United Kingdom as a source for asylum claims.
I am not aware of any shift in policy between the 1999 and 2002 White Papers. We want families to spend as short a time as possible in detention centres and for as few families as possible to do so. However, we do see the necessity for the powers. A figure of 11 months was quoted as the average time. I should be pleased to see the basis for that figure. Our figures state that 64 per cent of all detainees should stay for less than two months. But I shall be happy to examine those figures in detail if they are provided.
In terms of the size of the detention estate, there are currently 161 beds. They are normally provided in four-bed family rooms, giving a nominal capacity of that order. The occupancy figures as at 9th October were that the total number of people detained in removal centres was 1,275—that is all people; the number of family members detained was 88, plus 121 in Oakington; and, out of those 88, the number of children was 36.
The noble Earl, Lord Sandwich, raised a number of concerns. I shall be most happy to consider them if he will provide them to me. Detention is not prolonged unnecessarily—
My Lords, I wonder whether the noble Lord is able to deal with my other questions. I am grateful to him for the figures that he has given, but I asked him what plans the Government have to expand the accommodation for families when total capacity in the detention estate is increased from its present 2,000 to 4,000.
My Lords, I had not forgotten the noble Lord's question; it was in the pile of notes that I was coming to, but I shall deal with it now. No firm decisions have been made as to the exact number of family beds that will be provided when we reach the stage of commissioning or putting out a specification for them. Clearly it will be supplied, and I should welcome a question nearer that time if the noble Lord, Lord Avebury, would like to raise it with me. Raising such a question on the back of the generality of the subject of the family detention estate would be perfectly appropriate.
In terms of the question, "why more?", I believe that the House knows the answer. There is a significant increase in the in-flows of asylum claimants to the country. If we are to increase the number of removals of those who have no valid grounds for staying, then it follows as a fact—if an unfortunate one—that there will be a need for an increase in the size of the detention estate.
We believe that the UK's reservation on the rights of the child is lawful and that it does not prevent us from taking into account very seriously the best interests of the child.
I do not pretend that I have answered every question, but I hope that I have cut to the heart of the issue. Essentially, in an ideal world it would be wonderful if one did not have to detain families in this way. In our view, it is better to keep families together rather than to separate the children. Clearly, in an ideal world it will be even better simply to identify rapidly people who have a genuine claim—
My Lords, the answer is: no. In principle, without going into the hazy detail of my recollection of the child care laws, there are two grounds. I believe that social services would not lightly separate a child from his parents if an alternative provision were available. That seems to be right and proper in child care law. If I am wrong in my recollection of that law, I shall certainly write to my noble friend.
For the reasons that I have illustrated, while we wish to minimise the time that children are detained with their families, we believe that it is an unavoidable part of a necessary process of managing the asylum system.
My Lords, before my noble friend sits down, I noticed that the right reverend Prelate asked for clarification on a point which perhaps has been puzzling other noble Lords—that is, the position on Amendments Nos. 34 and 35. Those amendments were debated in a group yesterday and a vote took place. One's usual understanding is that, when a vote takes place after a group of amendments has been moved, there is, for the convenience of the House, only one vote. I believe it is technically the position that Amendments Nos. 34 and 35 were not moved and that therefore Clauses 34 and 35 are still part of the Bill.
However, is it not also the position that the main heat in the debate yesterday was generated by the reference in Clause 34(2) to the fact that an accommodation centre cannot place children in a local authority school? The Government will now be looking at the position on Clauses 34 and 35 in the light of the amendment moved yesterday. Although the right reverend Prelate assumed that he was correct in saying that Clauses 34 and 35 had fallen, that is not the position.
However, in the light of the circumstances, no doubt the whole question of what to do about yesterday's amendments and Clauses 34 and 35 will be considered. I believe that people who are unfamiliar with the proceedings of this House might assume that either the right reverend Prelate should have pressed the matter to a vote after dinner yesterday, which would have been awkward, or that he should have pressed a vote today. Therefore, it might be useful if my noble friend were to respond by saying that his understanding is different from that of the right reverend Prelate but, nevertheless, is along the lines of what I have just described.
My Lords, the position as explained to me by the noble Lord, Lord Belstead, when he was Leader of this House some time ago, is that an amendment follows on another which has been put to a vote without further ado if it is consequential upon it. As I understand it, the amendment moved last night by the right reverend Prelate the Bishop of Portsmouth was intended to, and had the effect of, placing children of asylum seekers in mainstream schools. Therefore, it was necessarily consequential upon it that Clauses 34 and 35 should fall. However, I understand that that must still be formally moved by the right reverend Prelate. If he wishes to do so, I believe that that would put the matter to rest.
My Lords, I am extremely reluctant to speak on this matter but I probably have no choice. The first point is that I have been advised by the Table that we have passed Amendments Nos. 34 and 35 and—for reasons that the House knows better than I—one cannot go backwards in terms of our processes.
The second point is that the noble Earl is right and, if I understand the record correctly, Amendments Nos. 34 and 35 were not moved and therefore still stand. I am speaking not as an expert on the process so if that is not the case, we will confer with the usual channels rapidly. This is not an issue on which the Government want in any way to get involved. We will accept whatever procedural ruling the House makes. We do not wish to be caught up in an issue about procedure on a vote on which we have lost the first of the three amendments that were moved together.
I am advised that Amendments Nos. 34 and 35 can be deleted at Third Reading.
My Lords, does my noble friend the Minister agree that in light of the amendment that was moved and passed last night, if Clauses 34 and 35 remain the Bill is now a nonsense? It would be helpful if my noble friend could indicate what steps the Government will take to make logical a Bill that is, at the moment, illogical.
My Lords, if I am right, the House is master of the Bill rather than the Government. I will not comment on whether or not the Bill is a nonsense. I remind the House of how much work we have to do today and how important it is to give attention to these measures. The advice that I have given the Committee is the best and most honest that I can give. It is true advice and we are where we are. This is not an issue on which the Government have a view or in which they wish to get involved.
My Lords, I apologise for being responsible for this muddle. I returned to the Chamber, leaving my hot dinner in the oven, to move Amendments Nos. 34 and 35 but was told that I did not have to do so. I was not quite quick enough earlier. I am very sorry to have landed the House in this mess, but I hope that it can be picked up.
I would just point out that I heard from BID about the family who had a refusal. They were served with it at home and were immediately detained. They were not given a removal date at that stage. They had always complied and never absconded. If anyone wants to find out more about that family or anything else, I ask them to contact BID.
Turning now to the amendment, I will not detain the House—I have been turbulent enough as it is—but with regard to the 11-month issue, I pass around statistics reluctantly. That is partly because I cannot add up. Maths have never been my strong point. I fully support the two-month dream that the Government have. In every word that I have spoken about asylum seekers in this Chamber since I entered the House, I have supported the Government and encouraged them to grasp the nettle and bring down the appeal time as much as possible.
However, I cannot accept the idea that the amendments are unrealistic. We must hold fast to a vision of what children are and who they are as people. I do not believe that we can sell them cheap because of exceptional circumstances. I am extremely grateful to the noble Lord the Minister for his courtesy but I still want to test the opinion of the House.
My Lords, in the flurry of excitement about some of the previous procedures, I omitted to say that we would be happy to look at the noble and learned Lord's suggestion, which sounds as if it is very close to getting two hits on two consecutive days.
moved Amendment No. 41:
Page 32, line 2, at end insert—
"( ) In the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4))—
(a) at the end of Article 54(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added "or under section 55 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State)", and
My Lords, in moving this amendment, I shall speak also to Amendment No. 42. In the interests of brevity, all I wish to say about these amendments is that they are minor, technical and consequential. I hope that noble Lords will not press me too much on them. I beg to move.
moved Amendment No. 42:
Page 32, line 8, at end insert—
"( ) In section 147 of that Act (detention centres: interpretation) at the end of the definition of "detained persons" there shall be inserted "or under section 55 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State);"."
On Question, amendment agreed to.
moved Amendment No. 43:
After Clause 55, insert the following new clause—
"REASONS FOR DETENTION
(1) A person detained by the Secretary of State under section 55 of this Act or by an immigration officer or the Secretary of State under the Immigration Act 1971 shall be provided with full written reasons for his detention in a language which he fully understands.
(2) Such reasons shall be provided within 24 hours of his initial detention and shall give a full justification for the need to detain him at that time.
(3) Further written reasons shall be given at the end of each period of 28 days or more during which he continues to be detained and shall give a full justification for the continuing need to detain him in particular.
(4) The completion of a pro-forma sheet listing general reasons for detention will not be sufficient to meet the requirements of this section."
My Lords, I do not move this amendment with the expectation that we shall achieve any advance on what the Minister said in Committee. He told us then that the amendment was unnecessary because the Government always provide written reasons for detention, and monthly reviews of detention are notified in writing. However, as the Minister will be well aware, the practitioners say that the so-called "reasons" given do not amount to proper reasons. They are dissatisfied with the manner in which they are conveyed.
Perhaps I may draw the attention of the House to a survey that was conducted by Bail for Immigration Detainees, which was mentioned in a previous debate. The reasons for detention given in some 90-odd cases that were dealt with in April 2001 and July 2002 were studied. There is not much difference between the two, so I shall amalgamate the figures rather than refer to them separately. It was found that the average length of detention at the time of review in those two periods was four months. Perhaps I may give some examples from the survey of the reasons given for detention, so that the Minister can see what we mean when we say that they are inadequate. I begin with: "Awaiting initial decision", which amounted to 2 per cent, but that is not a reason for detention.
Further examples were:
"Awaiting outcome of appeal against initial refusal", which showed a figure of 42 per cent. Again, that is not a reason for detention. And:
"Appeal lodged awaiting hearing date", which amounted to 6.5 per cent. I shall not go through the whole list of the reasons, but I am sure that the Minister can understand why we are anxious about this and why we believe that the assurances so far given are inadequate. That is why we seek to insert into the Bill the words set out in the amendment. We need to be certain not only that the assurances are carried out but also that they are on the face of the Bill and, therefore, irrevocable. In that way, people will be able to draw attention to the wording if they believe that the assurances are not being put into practice. I beg to move.
My Lords, it has been English law since the 17th century, and some would say since the 14th century—I incline myself towards the latter view—that one cannot arrest and detain a person unless he has been proved guilty of an offence or one wants immediately to charge him with an offence and bring him to a trial at which the charge may be answered. Clearly, that has been English law for a long time. The question is how far that law applies to foreign citizens in this country.
In the early 1990s I used to say that we were the only party prepared to come into office willing to limit our own power. During the passage of the Human Rights Act, my noble friend Lord Lester of Herne Hill pointed out that the Government were also able to claim the credit for that principle. They were prepared to come into office ready to limit their own power. That was an accurate statement and I do them honour for it. But the process is one that necessarily hurts and when we were in office we found that it hurt. Measures such as the Official Secrets Act 1911 are not among the great glories of my party.
However, this Government have to accept that they cannot detain people simply because they believe that it would be more convenient to do so. They must be able to charge people with an offence and to give them written reasons, to which they may make a reply and to which they may make a defence. The incorporation of the European convention applies what used to be described exclusively as the liberties of Englishmen, not to mention Scotsmen, to other people from other countries. That was a great leap forward and one must not stop half-way through a great leap forward or one suffers a terrible splash.
My Lords, the noble Earl has spoken with authority, but I confess to a degree of exasperation. During previous stages I expressed disappointment with the repeal of Part 3 and the lack of proper procedures for explaining to detainees the reasons for their detention. The Minister has offered us a pamphlet advertising the right to bail, which is welcome, but it is not a substitute for a proper judicial process.
My Lords, that is right, but I cannot help but make the point that the two matters are connected although not grouped together. I am concerned with the lack of proper procedures for explaining to detainees the reasons for their detention as I have mentioned before. I feel strongly that the checklist known as form IS91R should and could be improved at least to allow space to record the detainee's individual circumstances. The present form is contrary to UN guidance, as presented in evidence three years ago to the Select Committee, which said:
"Individualised written reasons, as opposed to repetition of generic formulae, for detention should be given to detainees at the time of arrest".
The improved form, besides fulfilling the UN criteria, could also become the basis for information prepared for bail hearings. I believe that there is new ground for debate on this matter. Therefore, it links directly with the arguments being made for automatic or regular bail hearings. Bail summaries should be available in advance of hearings to enable the detainee to prepare. That will save the time of the court.
A number of points arise from the Minister's recent conversations with the noble Lord, Lord Avebury, as already mentioned. I hope, for example, that we shall hear clearly from the Minister on the critical question of how the effects of torture and other medical information are recorded in the case of individual detainees. It is precisely because of the need for that information to be properly noted that we were arguing for an improved version of the written reasons. Many of us remained wholly unsatisfied with the present situation as the bail for immigration detainees case studies show. We remain of the view that assurances clearly given in 1999 by the noble and learned Lords, Lord Williams of Mostyn and Lord Falconer, have not been honoured. The Home Office still needs to put the matter right. I support the amendment.
My Lords, the Detention Centre Rules 2001 require every detained person to be provided with written reasons for detention at the time of his initial detention and monthly thereafter. The notice must be explained to the detainee, using an interpreter if necessary, and must be certified by an immigration officer.
It is not the case that the current notice provides only generalised reasons for detention. It sets out the specific power of detention used and specifies the particular reasons and factors that apply to the decision to detain in the individual case concerned. The powers, reasons and factors that may be indicated on the notice are the only ones that can apply in any case.
Our view is that an individual letter would cite exactly the same information, so a letter or other document drawn up for each individual case, as required by this new clause, would provide no information that is not already given in the notice.
To strengthen the monthly review process we have recently set up a central unit to manage detained cases. The unit is responsible for reviewing continuing detention in all cases and will also track detained cases through the asylum and appeals process. In addition to regular monthly reviews, the unit will also conduct event-driven reviews at other times, thus ensuring that the matter of continuing detention is considered even more frequently. It will also continue to be the case that detention will be reviewed at a local level on a weekly basis.
As part of the changes to the system of monthly reviews of detention, we shall also be reviewing the notice given to detainees to let them know the outcome of the detention review. It may be that the notice should be revised to improve the way in which it provides reasons for continuing detention. We have not closed our eyes to such a need.
On the question from the noble Earl, Lord Russell, and the noble Lord, Lord Kingsland, on the powers, detention for immigration purposes is expressly authorised by Article 5.1(f) of the ECHR, which permits the lawful arrest or detention of a person to prevent his effecting unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
My Lords, the Minister has just invoked Article 5.1(f) of the convention, but surely once a claim for asylum has been lodged, which must necessarily be true of all people under consideration now, that is overridden by Clause 31(1) of the 1951 Convention on Refugees. The matter came before Lord Justice Simon Brown judicially in a recent case and was determined without any ambiguity.
My Lords, as discussed in Committee and in the Home Office's response to the Joint Committee on Human Rights, we fully accept the implied limitations on the power to detain for a reasonable time for the purpose allowed by the power and the detaining authority acting with reasonable expedition. I shall consider the point raised by the noble Earl, Lord Russell. Without the clauses in front of me it would be flippant to dismiss it. However, I do not want to imply that we consider, for a second, that we are not operating fully within the power of the law. In support of that I would advance that clearly any person who is detained has a right of challenge to the courts either under judicial review or under habeas corpus for their removal. Therefore, I would have expected that in that case, were there to be such a flaw, it would already have been found out. I am further advised that Article 31.1 of the 1951 convention refers to penalties. Immigration detention is not a penalty for these purposes.
I indicated earlier, in what I said in terms of monthly reviews, that our minds are not closed as to whether improvements can be made with regard to the notification of initial decisions. The form is kept under review. We shall consider improvements. But currently we remain satisfied that the form is a right and appropriate way of giving the information that we are obliged to give. I should welcome receiving any representations made by your Lordships or other organisations if there are points that they want to bring to my attention.
My Lords, that is fairly helpful. I welcome what the Minister has said about the central unit, which is to review cases in detention and to conduct its own written reviews, which seems a good idea to me. It is also, most importantly from the point of view of this amendment, to look again at notices which are given to detainees. I am grateful to the Minister for his kind assurance that he will consult us and any of the agencies that are concerned in these matters, in order to see what they think should be done to improve the way that the forms are worded.
To the best of my knowledge, the noble Earl, Lord Sandwich, was correct that both the IS 91, which is given to a person on his initial detention, and the IS 151, given on the renewal of his detention, contain a checklist. That is what we consider to be inadequate. If a detainee receives a piece of paper which has been mechanically ticked and states, "You are likely to abscond if given temporary admission or release", we would consider that to be inadequate. A detainee is entitled to an explanation as to why an immigration officer takes the view that he is likely to abscond if he is given temporary release.
These are matters that we could discuss in detail. Therefore, I shall take up the Minister's invitation. I shall bring the experience of the organisation BID to that discussion and perhaps we may jointly have a meeting with it. Therefore, its input can be listened to by the Home Office officials. I am most grateful to the Minister. I beg leave to withdraw the amendment.
My Lords, noble Lords will be aware that we raised this matter in Committee. We return to the same point because it seems that there were some discrepancies in our information at that stage. That is why we suggest that Clause 57 should not stand as part of the Bill, a view very much supported by the voluntary immigration agencies that we have consulted.
Paragraph 17 of Schedule 2 to the Immigration Act 1971 permits an immigration officer or a police officer to enter premises to search for a person who is liable to be detained pending examination or removal under paragraph 16 of the same schedule. Before they do so, however, they must have obtained prior approval and a warrant from a justice of the peace to enter those premises to search for and to arrest that person.
If a police officer arrests a suspect he will then be able to conduct a search of that person's pockets and outer garments in order to ensure that he is not in possession of anything that could assist his escape from custody, be used to harm himself or others or which could be used in evidence relating to the offence for which he was arrested. The power to search is conferred by Section 32 of the Police and Criminal Evidence Act 1984. An immigration officer has similar powers which derive from Section 28G of the Immigration Act 1971.
When exercising those powers a police officer will be required to act in accordance with the codes of practice attached to the Police and Criminal Evidence Act. If he acts in breach of such codes he will be liable to police disciplinary procedures and possibly subject to an investigation by the Police Complaints Authority, or he may face civil action in the courts.
An immigration officer will also be subject to the codes of practice, as adopted by immigration officers for use in connection with the exercise of a policing role, by Section 145 of the Immigration and Asylum Act 1999 and the Immigration (PACE Codes of Practice) Direction 2000.
Clause 57 proposes to change that situation. If enacted, it will mean that detainee custody officers, who are not public employees and are not directly accountable for their actions to any public service disciplinary process or any complaints procedure, will be able to enter premises and search the detainee without being subject to any code of practice or specific disciplinary procedure. This is the information that we had when we last discussed this matter.
It is also unclear to what extent their entry will be regulated by any warrant. In Committee, I asked the noble Lord, Lord Bassam, whether it was correct that the custody officer needed a warrant. He stated:
"I think not; I think that the power is limited and that it can be exercised only when escorts are accompanying immigration or police officers to premises for which a warrant has been issued".—[Official Report, 15/7/02; col. 1077.]
If the immigration or police officer is a part of the particular body of people investigating the matter, why do we need such powers for the custody officer? If the custody officer is to have that power, why is it not possible for him to be regulated by the issue of the warrant as are immigration and police officers?
It is for those reasons that we feel that there are these discrepancies in this clause. Therefore, it should not form part of the Bill. I beg to move.
My Lords, I should like to say a few words in support of Amendment No. 54A. This concerns the revoking of exceptional leave to remain. The Home Secretary has in the past week been giving out slightly contradictory messages. On the one hand he has been urging immigrants to integrate, with perhaps extreme zeal in the matter of language. There is nothing wrong with the urge to integrate. But at the same time he made remarks in the paper at the end of last week appearing to threaten large-scale revocation of ELR already granted to people in this country for perfectly good reasons.
Can the Minister confirm that the Government do not intend any substantial revocation of exceptional leave to remain already granted, except for the reasons contained in this clause? I declare an interest in that I am asking this question on behalf of someone whose future I view with some concern.
My Lords, I am not certain that I caught every word of what the noble Earl, Lord Russell, was saying. I was conferring with the Table about where we were. I heard the noble Earl say that he was speaking to Amendment No. 54A. We are dealing with Amendment No. 44. I should be happy to return to his point when we reach Amendment No. 54A.
Clause 57 gives detainee custody officers acting under escort a limited power of entry to private premises in order to search detained persons prior to escorting them to a place of detention. The persons being taken to a place of detention must be searched before they are transported; most obviously to ensure that they are not carrying weapons or dangerous items. The search is to ensure the safety and security of the escort, the public and the detained person, including other detainees who may be in the escort vehicle. I should not have thought that that issue was in contention. The power to do so is given under paragraph 2 of Schedule 13 to the Immigration and Asylum Act 1999.
At present escorting officers cannot enter premises other than by consent. Where such consent is not given, the detained person is taken to the nearest police station to be searched. As we said in Committee, that can be embarrassing and laborious for the detained person. There are therefore real problems that the clause is an attempt to address in a limited, practical and reasonable way by ensuring that the escort can carry out the necessary search of detainees at the address at which they have been detained.
I stress that the power of entry under the clause is limited. It can be exercised only when the escort is accompanied by police or immigration officers who have a warrant to enter the premises where the person has been detained—where the escort will not be acting alone and the address will have already been entered. We took note of concerns expressed earlier about the consequential power of escorts to use force in exercising the principal power to enter an address. As a result, the provision regarding the use of force is now explicitly qualified to state that only reasonable force may be used. That places a greater burden of responsibility on the official. However, the provisions of Clause 57 are a necessary remedy to a situation that is causing problems.
On the question of how complaints against escorts are handled, the initial complaints will be directed to the Immigration Service's escort contract monitor, but under Schedule 13(1), the monitor is required to investigate and report to the Secretary of State on any allegations made against an escorting officer in respect of any act or failure to act while escorting a detained person. The detainee custody officer certificate may be suspended during such a process and may subsequently be revoked. So there are clear sanctions—also, of course, escorts are ultimately answerable in law for any action.
On the other question of why escorts are not subject to the Police and Criminal Evidence Act 1984 code of practice, certain provisions of the PACE codes apply to the search of persons arrested by immigration officers. However, in relation to escorts' entry to premises, it will be the police and the immigration officers who will effect the entry to premises, with the escort following.
Having made those points and given my explanation of why the provision is necessary, what are the safeguards and what is the complaints procedure for redress, I hope that the noble Lord will not be minded to press the amendment.
My Lords, I thank the Minister for his explanation. I apologise for any confusion about Amendment No. 44, which my noble friend mistook. Will the Minister confirm that he said that a custody officer would not have power on his own to enter premises, he would be accompanied by police or an immigration officer in possession of a warrant who could do so?
moved Amendment No. 45:
After Clause 59, insert the following new clause—
"LIABILITY TO DETENTION: INTERPRETATION
(1) This section applies to the construction of a reference (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.
(2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that—
(a) he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement,
(b) practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or
(c) practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.
(3) This section shall be treated as always having had effect."
The amendment arises from the judgment of Mr. Justice Crane in two judicial review applications brought by Mr. Hwez and Mr. Khadir, given shortly after the Bill completed Committee stage. Not to detain the House excessively, clearly there are problems as a consequence of the application of that judgment for the effective application of the asylum and immigration control processes. The judgment of the House of Lords is not expected before July, so the Government seek through the Bill to take power to put the issue beyond doubt and peradventure. I beg to move.
My Lords, for the Minister to say that the Government want to put the issue beyond doubt and peradventure because of one case—one judgment—is the most marvellous way to describe building a mountain out of a rather small molehill. It is extraordinary that the new clause, which, as the Minister will accept, immensely broadens the Secretary of State's powers to detain people under the immigration Acts, should come before Parliament at this late stage, when the Bill has been discussed in another place since May and we are on the second day of Report in this House. There has therefore been no opportunity for widespread reflection or consultation on what I think that the Minister would concede is a remarkable new clause.
It is remarkable, first, for its extraordinary drafting. I walk on thin ice here; I am not a lawyer. During all the years when I was an immigration Minister, I never became an expert immigration lawyer. But during 23 years in the House of Commons, I had to read an awful lot of Bills. The new clause states:
"This section applies to the construction of a reference (in any terms) to a person".
What on earth does that mean? Does it just mean that the draftsman could not be bothered to go through all the immigration Acts to which that may refer, and so simply said, "It will refer to everything that is possibly involved"? I have never seen such terms before. On first reading the new clause, I did not pick up just how serious that was and to what extent it increases the detention powers of the Secretary of State.
The new clause concludes:
"This section shall be treated as always having had effect".
That is the most marvellous example of retrospection that I have ever read.
I understand what the Minister said: there is one case about which the Government are worried so they needed to table a new clause. Obviously, there will be an opportunity for it to be debated at greater length on Thursday in two weeks' time—I think that that is what the Minister said. Is that correct?
Oh, this is once and for all.
In fairness, other noble Lords on the Government Benches, such as the noble Lord, Lord Judd, may want to ask some of the same questions as me. Roughly translated, the clause appears to mean, "We are not very good at removals. We do not anticipate getting any better. Nor do we anticipate committing the expertise and resources to the area that would make us better. So we shall take power to continue to detain people without judicial oversight, limit of time and, what is more, we shall make that power wholly retrospective". That is amazing.
Either the Government intend to take powers that will put them in breach of their obligations under Article 5 of the European Convention on Human Rights or lazy drafting has resulted in a provision that will have that effect. The advice given to me by the Immigration Advisory Service, to which I am grateful for bringing the matter to my attention, is that the decision appears to pre-empt the judgment in an important case—the Oakington case—in which the judgment of the House of Lords is currently awaited. I understand that the issue before the House of Lords is whether locking up asylum seekers to facilitate the process of administering their claims to asylum amounts to a deprivation of liberty and is unjustified under Article 5(1)(c) of the European Convention on Human Rights.
"it is lawful to detain a person in a detention centre while the application is considered, provided that there are suitable safeguards . . . With regard to the length of detention, the question is whether it is disproportionate to the purpose of detention having regard to the conditions of detention and any special circumstances affecting the individual. The Court of Appeal appeared to hold that detention of asylum-seekers which satisfied those tests did not amount to a deprivation of liberty under Article 5(1)."
It must be said that the JCHR's words, "appeared to hold", may be read as an indication that the decision in the House of Lords in this case is far from a foregone conclusion—which, I understand, is also the view of other commentators.
I do not want to take up your Lordships' attention for too long on the matter, but on the question of lazy drafting, will the Minister clarify the meaning of the word "decision" in new subsection (2)(c)? It appears to be without restriction. Moreover, what is meant by the reference in subsection (2)(a) to legal impediments due to international obligations? If a person cannot be removed because of the United Kingdom's obligations under the 1951 refugee convention or under Article 3 of the ECHR, is that reason enough to detain the person, none the less? From the way that the clause is worded, it appears to be. The legitimation of detention of a person who cannot be removed from the UK because of a legal impediment is worded so as to shroud the actual meaning.
I shall give an example in layman's language. Subsection (2)(a) would refer to groups such as Zimbabweans. The Minister knows that, when the Government decided earlier this year that it would be impossible, impractical and wrong to continue to deport Zimbabweans to Zimbabwe, the Zimbabweans who were in detention were immediately released. Under this clause, as I understand it, such people would not be released. Is that what the Government intend, or is it a case of lazy, hasty drafting designed to deal with a particular case and done without anyone thinking through the serious consequences that would flow from such a clause?
I echo what was said by the noble Lord, Lord Renton of Mount Harry. There is a serious danger that, if Parliament were to accept the new clause, it would authorise breaches of the right to liberty in Article 5 of the European Convention on Human Rights. I shall come to the strange wording, of which I seek clarification, in a moment.
The first thing that I must say is that, unfortunately, the Joint Select Committee on Human Rights, of which I am a member, is taking evidence in the Antipodes and is, therefore, not available to give advice to the House about its views of the compatibility or otherwise of the clause with the European convention. The committee's legal adviser, Professor David Feldman, is in this country, and I would like to have time to consult him and, if authorised, present his view to the House before we take this step.
In a commendably brief speech in favour of the amendment, the Minister did not explain to the House—certainly not to me—the reasoning behind the High Court judgment, why it creates difficulties and whether it relates to human rights issues. I know nothing of the particular case. However, I do know that it is unusual, to say the least, for Parliament to be asked to give the Minister powers that will nullify a future decision of the House of Lords in a pending case. That applies not only to the case to which the Minister referred but to the Oakington case, which is pending before the House of Lords as well. The noble Lord, Lord Renton of Mount Harry, referred to that. Parliament has no access to independent legal advice on such matters, other than through the Joint Select Committee on Human Rights. Given that the committee cannot give that advice at the moment, for the reason that I have given, where is the Minister's explanation of his presumed view that the amendment is compatible with Article 5?
If the Committee were in the country, the procedure would be different. We would identify a problem—as in Amendment No. 45—and ask the Minister to give us his reasons, in writing or orally, why he considered that the provision is compatible. We would then comment on the Minister's views and refer them for the attention of both Houses. That procedure could not be followed in this case, and the Minister has not given the House the benefit of his considered views and those of his legal advisers—without going into questions of legal professional privilege, which I do not seek to do—on compatibility.
We should consider what the clause says. It is bizarre and curious. It is headed, "Liability to detention: interpretation". It is a general clause, which purports to widen the Home Office's powers of detention. It states:
"This section applies to the construction of a reference (in any terms) to a person who is liable to detention under a provision of the Immigration Acts".
That is as broad as could be. Then, it states:
"The reference shall be taken to include a person"— to be detained—
"if the only reason why he cannot be detained under the provision is that—
(a) he cannot presently be removed from the United Kingdom because of a legal impediment connected with the United Kingdom's obligations under an international agreement".
The two most relevant international agreements are the European Convention on Human Rights and the refugee convention.
Let us consider a case that arose last year with the anti-terrorism law and a suspected terrorist who had to be detained because, if he were sent to another country, he would face the death penalty or torture, in breach of Article 2 or 3 of the European convention. The Government rightly took the view that holding someone in those circumstances would be in breach of Article 5 of the European Convention on Human Rights, unless there were a derogation. So, a derogation was made. There was a huge debate about it in both Houses, and its compatibility is now being tested in the courts. However, the Government did, at least, seek a derogation for a suspected terrorist in those circumstances.
However, this provision does not apply only to a suspected terrorist, a case that the present derogation would cover. It covers anybody who is liable to be detained but,
"cannot presently be removed from the United Kingdom, because of a legal impediment"— whatever that means—
"connected with"— whatever that means—
"the United Kingdom's obligations" under the European Convention on Human Rights or the refugee convention. In other words, as I read it—I am sure that I will be corrected if I am wrong—it authorises the detention of someone who cannot be removed from this country to face the death penalty or torture but who is not a suspected terrorist and has not been convicted, or is not suspected, of a serious criminal offence.
If I have got that right—and I ask the Minister to make quite clear to the House his understanding of the full scope of the power and his reasons for believing the powers sought to be compatible with Article 5, notwithstanding the absence of derogation—I must protest with as much eloquence as I can muster. It is entirely wrong that powers of this magnitude should be sought, after the enormous controversy that we had over the terrorism legislation—a much more serious situation—a year ago, in the guise of putting right a High Court decision that might be affirmed by the Law Lords next July and causes administrative inconvenience.
I cannot expect the Minister to give a full explanation to the House today, without notice, of his reasons for considering the provision to be compatible with the convention. I cannot expect him to set out the whole High Court decision to which he refers—it would be boring if he had to do so—and I cannot expect him to explain why it is right prospectively to make the rulings of the Law Lords irrelevant to the law of this country. However, given that the Joint Select Committee on Human Rights is not here to do its job and that Parliament has no access to independent legal advice, I respectfully suggest, in deference to our accountability to Parliament as law makers, that we should postpone consideration of the amendment until the House has had the benefit of a full explanation and can consider it at Third Reading.
My Lords, it might help the House if I spoke more fully at this point, so that I can put into the discussion more of the argumentation. As several noble Lords have said, it is important to understand it. With the leave of the House, I will do that, as it may focus the discussion. Perhaps I left too much for my closing speech and should have put more into my opening speech. If the noble and learned Lord, Lord Mayhew of Twysden, will bear with me on that I think it would help the discussion, leaving open for a second the procedural issue raised by the noble Lord, Lord Lester.
First, we accept that this is only one case.
My Lords, I am advised by the Table that the way that I have phrased it makes it clear that other Members can speak after me because I am giving information to the House, rather than making my closing speech.
We certainly accept that this is only one case, but it has significant ramifications. It is fundamental to the discussion that the clause does not authorise detention. For that reason we believe it is compatible with ECHR because we will not detain anyone as a result of the clause. No one will be detained but the power relates to the ability to grant temporary admission to people who are not detained. The judgment of the High Court is that one cannot detain someone if at that precise moment he cannot be granted temporary admission either. We want to be able to grant temporary admission and because there is no detention we believe there is no issue of incompatibility with Article 5. The judgment held that temporary admission is not available when the power to detain no longer exists.
Paragraph 16 of Schedule 2 to the Immigration Act 1971 allows certain categories of people to be detained pending a decision whether or not to give directions for their removal. I regret to say to the House that this statement will take some time because it is highly technical and highly legal material and I need to put it into the record in full. Where removal directions are given, they may then be detained pending removal. Paragraph 21 of that schedule provides that where a person is liable to detention or who is actually detained under paragraph 16 he can be admitted or released temporarily. This temporary admission or release can be subject to conditions requiring the person to live at a particular address and to report at specified times.
As noble Lords will be aware, there is no set time limit to the power to detain but for the detention to be lawful it has to be for the reasons stated and may go on for no longer than is reasonable in order to achieve the objective for which it is authorised. For example, if removal cannot be reasonably said to be pending, in the sense that it is not going to be possible to remove the person within a reasonable time, the person concerned cannot be detained. When this point is reached, the normal practice is to grant temporary release under paragraph 21. This will generally be subject to conditions of the kind I have described.
However, in the case I mentioned, Hwez and Khadir, Mr Justice Crane held that the term "liable to be detained" did not refer to the category of person, but in effect means the same as "could lawfully be detained at that moment". In other words, if the point is reached where someone can no longer be lawfully detained, the alternative of granting temporary release on conditions is not available. We may not detain, yet we may not impose restrictions on them (via the authorisation of temporary admission) while they remain in the United Kingdom. This is so even where it is our firm intention to remove the person concerned as soon as it is possible to do so.
Similarly, if a person is on temporary admission, and a point is reached where his removal cannot be described as pending, the temporary admission ceases to be valid. Although the point made in Hwez and Khadir related specifically to powers under Schedule 2 which apply to arriving passengers, illegal entrants and overstayers, it would apply equally to someone who is the subject of deportation action under Schedule 3.
Take the case of a person who has committed a serious offence and whom we wish to deport, possibly someone who has been recommended by a court for deportation. The 1971 Act allows that person to be detained after he has completed his sentence pending his deportation from the UK, but this is again subject to a test of what is reasonable in all the circumstances. Normally if such a person cannot lawfully be detained, he will be released subject to restrictions requiring him to live at a particular place and report on a regular basis. That way, the Immigration Service is able to keep in contact with the person concerned. Following the decision in Hwez and Khadir, there is no legal basis for imposing such requirements.
The ability to require someone who is physically present in the UK but does not have leave to reside at a particular address and to report to the police or Immigration Service on a regular basis is crucial if we are to stand any chance of being able to keep track of him. We believe the judge's interpretation is wrong, as we have indicated, and we have been granted leave to appeal to the Court of Appeal. However, the point is unlikely to be finally settled in the near future. Of course, we do not know what the eventual outcome will be.
As I say, the ability to be able to require people to live at a particular address or to report regularly are key to the concept of contact management. We fully accept that there are implied limitations on the power to detain. But we cannot have a position where those people subject to immigration control who do not have leave to be here and whom we may not lawfully detain are able to remain in the UK pending the next stage of the immigration process—for example, removal—without us being able to impose any sort of restrictions on them, such as residence or reporting restrictions.
To deal with the effect of the judgment, subsection (2) of the proposed clause therefore makes it clear that a reference to being liable to detention includes cases where for one reason or another a decision or removal is not pending. I should stress that we are not saying that such persons may lawfully be detained. All we are trying to do is to ensure that where the ability to impose restrictions on a person subject to immigration control rests on that person being liable to be detained—paragraph 21 of Schedule 2 to the Immigration Act 1971 and paragraph 2(5) and (6) of Schedule 3 to that Act—we can do so even where we may not lawfully detain the person concerned.
The clause will come into force on Royal Assent and is to be taken as having always applied. This will make it clear beyond question that a person is in one of the categories concerned to be given temporary admission even when he cannot be—or can no longer be—lawfully detained.
I should make it clear that this does not alter the position as regards the lawfulness of a person's detention. What it does is restore the option of granting release on conditions where detention is no longer possible which was generally believed to be the position before this judgment.
My Lords, let me receive that point, but I believe that I should finish what I have to say because some of it is so technical that it is only fair to the House to put it on the record. I will then seek to come back to answer that question.
Subsection (3) of the clause has the effect of—
My Lords, my noble friend Lord Renton of Mount Harry has asked a very relevant question. I understood the Minister to say that the new clause does not make lawful continued detention. Is that what he intended to say? Is that what he believes to be the case? Certainly in the brief time one has had available to examine the Bill, that does not appear upon the face of the new clause.
My Lords, what I believe I said was that the clause does not authorise detention.
My Lords, before we go further perhaps I may deal with my response to the suggestion made by the noble Lord, Lord Lester of Herne Hill. What I am reading into the record now is of great complexity and there is clearly, as there should be, interest and concern in the House to look at it. I would not feel happy if we had a Division on an issue when it was almost impossible for people to be certain that they were in favour of dividing one way or another. Therefore I intend to read into the record of Hansard the full reasons for the Government's position on the matter, and do not intend to force the amendment today. That will allow the House the opportunity to consider the amendment. I should stress that this is to allow the House the opportunity to consider it before Third Reading because we wish to make progress at Third Reading. I hope that that is acceptable. Even though it is not the most attractive course of action, I feel that it is only fair to the House.
My Lords, that would meet my concern. It would give the House the opportunity to understand the proposed new clause—which, on its face, is not very clear—and it would give us time to think about it before we decide whether to make it a part of the law of the land.
My Lords, that is a further good suggestion. We shall do that. It will enable us to amplify any points which are not covered by what I am now reading into the record. It may also pick up some of the other questions raised. I hope that that is acceptable.
My Lords, other noble colleagues may wish to ask further questions—that I well understand—but any approval of this clause should be suspended until Third Reading. There should be an explanatory note so that we can all understand what the Government are intending to cover in the new clause, which is not at all clear at the moment. That would be a very satisfactory solution.
My Lords, that is what we shall do. Perhaps I may continue. It will, I am afraid, be tedious, but it is essential that I continue the exposition in order to have on the record the finality of it.
Subsection (3) has the effect of giving the clause retrospective effect. This means that an argument by persons who, in the light of the judgment of Mr Justice Crane, might seek to say that the restrictions which had been imposed on them under paragraph 21 of Schedule 2 or paragraph 2(5) of Schedule 3 to the Immigration Act 1971 were or had become invalid, would fail. Subsection (3) has the effect of validating the authorisation of temporary admission and restrictions imposed.
The reason for the retrospective effect of the clause is that it is simply not possible for the Immigration Service to identify all of those persons who, in the light of Mr Justice Crane's judgment, may not be subject to any valid restrictions, and to re-authorise temporary admission to such persons, and re-impose fresh restrictions on them on commencement of this clause on Royal Assent. The retrospective effect of the clause avoids the need for the immigration authorities to do this.
There may be some concern about the retrospective nature of this clause given that it is a criminal offence under Section 24(1)(e) of the Immigration Act 1971 to breach restrictions imposed under Schedules 2 or 3 to the 1971 Act without reasonable excuse. As the law stands at the moment in the light of Mr Justice Crane's judgment, and should Mr Justice Crane's judgment be upheld on appeal, there may well be people who can say that in the light of that interpretation of the power to authorise temporary admission and impose restrictions on them, the restrictions imposed on them had not been validly imposed and therefore they had no reason to comply with them whether or not they had a reasonable excuse.
As I have explained, the effect of subsection (3) of the clause will be to validate those restrictions. I have explained the reasons for needing to validate those restrictions, but I must make it very clear that it is the Government's intention that the retrospective effect of the provision will not operate so as to create any criminal liability under Section 24(1)(e) of the Immigration Act 1971 for breach of restrictions validated by it in respect of the period prior to its enactment. The intention is that subsection (3) would not operate so as to impose criminal liability on persons who had breached restrictions imposed on them under paragraph 21 of Schedule 2 or paragraph 2(5) of Schedule 3 to the 1971 Act before this clause comes into effect to the extent that the courts find that those restrictions, but for the retrospective effect of this clause, had not been validly imposed at the time when the restrictions were breached.
Criminal liability would, however, arise if a person whose restrictions had been validated by this clause failed to comply with such restrictions without a reasonable excuse after the clause comes into force.
And, of course, where restrictions have been validly imposed before this provision comes into force and no question as to their validity is raised as a result of Mr Justice Crane's judgment, or any future judgment on appeal of that decision, then a person may face prosecution now and after commencement of this provision, as before, if they have breached those restrictions without reasonable excuse. Nothing in this clause affects the position of such persons.
I am conscious of how highly technical this is. I repeat the assurance that I gave to the House: we do not intend to move the amendment. That will give the House an opportunity to consider the proposed new clause and its explanatory note. I hope that that will expedite business, both today and at Third Reading.
I wish to begin my short contribution by a word of kindness, or at least consideration, towards the parliamentary draftsman. It is unduly harsh to refer to this as lazy draftmanship. When I had some responsibility for the parliamentary draftsmen, the very last quality I would associate with any one of them was that of laziness. The fault with this clause—and it is an enormous fault—lies not with the draftsman, whom I am sure was told to construct a scattergun or blunderbuss clause—which is exactly what has been constructed—but with those who gave the instructions.
The new clause deals with the power of the state to detain people—that is to say, to deprive them of their liberty. As we all know, in the context of immigration law, this power has been dealt with by successive immigration Acts. Those Acts have imposed, very properly, at the instance of Parliament, strict limitations on the powers they confer to detain, to deprive people of their liberty. In the new clause, those provisions apply to people "who are liable to detention". Very properly, those powers are limited. In other words, it is only in very carefully defined and strictly limited circumstances that a person may be liable to have his liberty curtailed. That is absolutely right and four-square with our traditions in this country.
Now, as we have heard from the Minister—for whom I feel I must express deep sympathy at being handed such a brief—the Government are faced with the judgment of which we have heard. He will forgive me if I do not follow him in the technical explanation that he has given, which extended over four or five closely typed pages. The Government have responded to the judgment about which we have been informed by blandly referring to obligations, entered into freely by this country, in international law as an impediment to the removal of a person.
It is an impediment indeed. I have always understood that this Government took great credit for upholding international law, but in recognising that there are circumstances where international law imposes an impediment on removal, they recognise, as I understand it, that the person concerned can no longer be regarded as liable to detention. So what do the Government do? They introduce, by a blunderbuss clause, provisions which make people who are no longer liable to detention, liable to detention. That is the effect of the clause. It is intended to be the effect of the clause.
Whether or not it is intended to have that effect, that is the effect that it has. I respectfully suggest that when the Minister began his explanation, he was not justified in saying that the clause does not authorise detention. It does. It authorises detention where continued detention has been found to be unlawful by reason of an impediment imposed by international law.
And it does so by the use of language which should find no place whatever in our statute book, at least in the context of deprivation of liberty—that is, the extraordinary provision that,
"This section shall be treated as always having had effect".
Perhaps the Minister will take instructions as to whether such a provision has ever found place in the statute book, certainly in connection with the deprivation of liberty. I regard it as almost literally breathtaking.
We now find the Minister saying that, although punitive penal provisions in the legislation would technically be engaged, it is not the Government's intention that the new clause should operate to impose criminal sanctions. But that is exactly what the new clause does. One could continue to an extent that would weary the heavens, let alone this House, about the iniquities of this new clause. It really must not happen.
Yesterday, much concern was expressed and we heard reassurances from the Government that children, for example, would not remain in detention for long, and therefore the concerns expressed by the right reverend Prelate the Bishop of Portsmouth would not be met with in fact. Now, apparently, they are to be capable of being detained for an indefinite period, even though the Government say that that is not the intention.
Retrospective legislation is anathema to the rule of law. If there are specific cases which the Government feel must be dealt with, that must be done by specifically targeted legislation and not by this iniquitous blunderbuss.
My Lords, to my simple mind, not understanding all the issues involved, it seems to me that what the Government are trying to do is to frustrate the immediate effect of a recent court decision, and to do it by retrospective legislation. Am I correct; and if so, do the Government really think that that is the correct thing to do?
My Lords, I, too, should like to ask the Government about the constitutional propriety of what they are doing. As I understand it, the case of Hwez and Khadir was decided by Mr Justice Crane, among other things, on a human rights issue. I am assuming that that is so. If it is the case, there must be a chance that the Judicial Committee of this House will confirm that judgment.
If the Government proceed with this amendment, therefore, there will be a clear incompatibility between statute law and the European Convention on Human Rights. If this legislation is on the statute book by the time the Judicial Committee takes its decision, that incompatibility will have to be declared by the committee. Yet the Government have already certified the Bill as being compatible with the European convention.
The Government know all of that in advance. Surely the Government must accept that, in the light of that knowledge, it would be wholly inappropriate to pursue this amendment.
My Lords, the noble and learned Lord, Lord Mayhew, issued us with an historical challenge: to find anything similar providing that a restriction on liberty should always have had effect. Before visiting the Library, I cannot confirm it, but I believe that there is one precedent; namely, the replies to the questions of Richard II to the judges in 1386. Within 18 months, those judges had been impeached—and I do not need to tell your Lordships what happened to Richard II.
My Lords, before the Minister replies, since I raised the matter in what he may regard as high-falutin terms, perhaps I may respond to the information that he has given. I have listened carefully to him and in so far as I understand the technicality of what he is saying—I shall certainly want to read his remarks in Hansard—the position is this. This provision, although its rubric is,
"Liability to detention: interpretation", has nothing to do with liability to detention. Therefore, the rubric is misleading. As I understand the Minister's remarks, it relates to a liability to have conditions imposed on someone who cannot be detained, but as regards residence, reporting and matters of that kind. If that is the position, I respectfully suggest that it should not be beyond the wit of Parliamentary Counsel to draft a narrower, carefully tailored amendment that would deal with that. It would then seem to me to be entirely unobjectionable to fill that gap, notwithstanding one's normal horror at retrospective legislation. But, on the face of it, the provision as drafted seems to go much wider than that. If that could be done, I am sure that it would meet my concerns and those of other noble Lords.
I thank the noble Lord, Lord Lester, for his thoughtful suggestion. I shall consider it and see whether a redrafting of the amendment would aid clarification and might aid the appearance of better law-making.
I shall not respond in detail. It has been helpful to hear the challenges. We shall examine this issue in detail and publish Explanatory Notes. That will give the House a proper opportunity to see, with the benefit of those notes and some time, on the record, whether there are grounds for the concerns raised.
The timing of the introduction of this new clause, on Report, is unavoidable in that the judgment did not take place until 29th July. For the reasons I have indicated, we feel that there are pressing issues. Exactly as the noble Lord, Lord Lester, said, we are talking essentially about the power to grant temporary admission, not the interpretation of the power to detain. However, I shall not press that point at this stage. Let the record be inspected; let us put out Explanatory Notes; and, if it would help the House, let us offer bilateral discussions between now and Third Reading, so that one can try to ensure that there are no misinterpretations. For the avoidance of doubt, I beg leave to withdraw the amendment.
moved Amendment No. 47:
After Clause 60, insert the following new clause—
"BAIL HEARINGS: SURETIES
(1) This section applies in a case where the Secretary of State, an immigration officer, an adjudicator or the Tribunal has power to release on bail.
(2) Sureties may only be imposed where absolutely necessary to secure compliance with any conditions of bail, taking into account the personal circumstances of the detainee.
(3) If sureties are imposed the amount, if any, in which such a surety shall be bound shall be reasonable."
My Lords, we return to a point that we raised in Committee. It relates to the fact that, in the past, adjudicators have demanded two sureties. That has created enormous difficulties where the sureties are put up in one part of the country, the adjudicator is hearing the case in another, and the lawyers come from a third. Enormous efforts have to be made by organisations such as BID to provide the necessary amounts for the sureties demanded.
We have consistently demanded that the adjudicator should have power not to demand any sureties, or to demand one surety or two sureties if that is what he thinks proper. There must be very few cases where the requirement for two sureties, which has been regularly observed in the past, is really necessary from the point of view of ensuring that a person responds to bail.
We held discussions with the Minister during the summer and he gave us an assurance that the adjudicators were already complying with what we are demanding; namely, that they should have power in suitable cases not to demand any sureties. I am sorry to tell the Minister that only this afternoon I was handed a summary of a bail application made as recently as 3rd October in which the reasons for opposing bail included the fact that,
"Rule 34 of the Immigration and Asylum Procedures Rules requires a written application for bail to provide two sureties. No sureties have been offered in this case".
So adjudicators are continuing to observe that provision in the rules and nothing has been done to draw their attention to the fact that they are no longer required to do so.
I hope that the Minister will take this opportunity to set out the position clearly on the record. I hope, further, that the rules can be amended, if that has not already been done, so as to put the matter beyond doubt. It is a burdensome requirement and it is not necessary. I beg to move.
My Lords, the present situation is that asylum seekers and other immigration cases are being detained for up to 11 months. A small sample survey that was quoted in your Lordships' House earlier today showed that there was a four-month average. That is a very unsatisfactory state of affairs that we thought had been remedied by the 1999 Act, which provided for automatic bail hearings. Regrettably, that part of the Act was never brought into force, and, today, Amendment No. 46, which would have revived it, was not even moved.
Therefore, we urgently need some form of automatic bail hearing, reasonable conditions of bail—not demands of £1,500 a head on people who arrived in this country almost penniless—and written reasons for the detention, so that the adjudicator or the magistrate can consider the matter properly. I hope that the Government will take this amendment rather more seriously than they took the previous one.
My Lords, I wish to follow the noble Lords, Lord Hylton and Lord Avebury, in speaking to this amendment. It is yet one more example of how the Bill can be made more comprehensive, accountable and—in the best sense of the word, because I know that it has a sentimental sense also—compassionate. Given my own experience of meeting those involved in bail hearings and in dealing with asylum seekers, I hope that the amendment is given a sympathetic hearing.
My Lords, I have some queries. The amendment seems extremely restrictive in its statement that,
"Sureties may only be imposed where absolutely necessary".
I am unsure of the current position; it is probably that sureties are asked for when deemed necessary or appropriate. It is an established tradition of all bail law that those in the position to grant or refuse bail have an option to seek sureties. To suggest that they should be sought only where absolutely necessary is extremely strong and perhaps too heavy a hobbling condition precedent to be justified. The last part of the amendment states that if sureties are imposed the amount should be reasonable. That is the present position, so I am not sure why the provision needs to be there and I am not bothered by it, one way or the other. However, I am bothered by the provision that requires sureties to be requested only when absolutely necessary.
My Lords, I did not intend to intervene in this debate but I must take issue with my noble friend Lord Borrie. Essentially, we are talking about innocent people who have not been charged with a criminal offence. Normally, bail is granted when dealing with criminal offences. These are innocent people, so the concept of surety should hardly apply. From my knowledge of asylum seekers, I find it difficult to believe that any of them would have the money to provide any surety unless they had friends here who could do it for them. I find it difficult to envisage circumstances where it is necessary to detain people but where a surety would make it OK to let them out. I do not understand what the Government fear those people might get up to in respect of which a sum of money would make the activity all right. I am puzzled; I would have thought that if it is inappropriate to detain people, one does not need a surety and they should just be released. Perhaps my noble friend could clarify the matter.
My Lords, I shall seek to do my best. The option to seek sureties when granting bail, as the House knows, is an established part of the bail process. The purpose of requiring individuals to stand as surety is to try to ensure that the person bailed appears as required at the end of the bail period. That is a sensible measure.
Under the bail arrangements for immigration detainees, an applicant for bail is required, when he applies to an adjudicator for bail, to put forward the names of two persons who would be willing and able to act as sureties in the event that bail is granted. As the noble Lord, Lord Avebury, will know, planned changes to the procedure rules will replace this requirement so that any person may act as a surety. This will be put into effect when new procedure rules are issued following the enactment of the Bill. We wrote to him on 3rd September setting that out.
However, even at present, there is no statutory requirement on an adjudicator to require that sureties stand in every case. An adjudicator may not always consider it necessary or appropriate to require persons to act as sureties before granting bail. However, where they do, it is rightly for them to judge that this is the case and to judge the amount of recognizance in which the sureties should stand. These decisions are already taken in the light of the circumstances of the detainee and of the persons acting as sureties.
The current legislation, we believe, provides a satisfactory framework in which these matters of judgment may be exercised. It is already the position that sureties will not be needed in every case. It is the judgment of the adjudicator as to whether to impose them, and we believe that adjudicators and immigration officers recognise this fact. It must be remembered that a person applying for bail is in lawful detention and, in many cases, will be considered unlikely to comply with any reporting restrictions. If that was not the case, he would no doubt have been granted temporary admission or release. When it comes to granting bail, it is quite proper that there will be cases where there should be some significant financial incentive—the amount will be judged by the adjudicator—on the detainee directly or on his sureties to comply with the terms of the bail granted. This is reasonable, sensible, and in accordance with long-standing practice. It is worth remembering that the detainee or his sureties will not lose their money provided the person on bail abides by the terms.
My Lords, I have listened carefully to what the noble Lord said. Will he consider further the point raised by the noble Lord, Lord Dubs? In the experience of many of us over the years, it is precisely the person who gets here through having been able to pay a substantial sum to somebody who can bring him who is most likely to be able to get people to put up a surety. It is the absolutely genuine asylum seeker, sometimes fleeing for his life and liberty, who will have neither money nor, in many cases, associates in this country. Indeed, in many ways, this is an instance in which he can show how genuine a refugee he is.
My Lords, I take that point and I understand it. However, there is a problem. If, in the judgment of the adjudicator—who, as the House well knows, is well distanced from and no part of the Home Office—there is a risk that the person, if bailed, would not present himself at the appropriate time, the adjudicator is entitled to require sureties and recognisances. If those cannot be provided and it is considered that there is a risk of non-presentation, the adjudicator will make the judgment in the light of those circumstances. I cannot see that the adjudicator can do much else in that situation.
I shall give a few figures that may help. On average, 84 per cent of bail grants were subject to surety conditions. It is not without conjecture that people are granted bail without any surety conditions.
My Lords, I was hoping to get on the record precisely what the Minister has said, which, as he mentioned, he embodied in a letter to me, which may have been placed in the Library of your Lordships' House, but which might not have reached a wider audience if he had not made the speech to which we have just listened.
The noble Lord, Lord Borrie, may be interested to know that on one occasion when I offered to stand bail for an asylum seeker—he happened to be one of those who sought refuge here after the Afghan aircraft hijack—the adjudicator asked for £11,000. He also wanted it in cash; he did not like the cheque that I sent in. I do not think that that was reasonable. Some adjudicators have laid it on pretty thick.
The Minister has made it clear that there are planned changes to the procedure rules. I hope that they can be carried out as quickly as possible. It was clear from the note that I read out that in the minds of some practitioners and adjudicators there was still a requirement that two sureties should be imposed and that that was what Rule 34 said. Perhaps if there was wider knowledge of the freedom of adjudicators not to ask for any sureties, the percentage would go up from the current 16 per cent mentioned by the Minister to something much higher. I agree with the noble Lord, Lord Dubs, that adjudicators ought to be able to decide on the merits of the case whether a person is likely to comply with reporting conditions.
I can see that we are not going to make any further progress on the subject this evening. I should like the Minister to confirm—as he has done in conversations with me—that when he uses the word "any" it means that the adjudicator can refrain from asking for any sureties. He can ask for no sureties or one or two. The Minister is nodding. I mention that as a means of getting on the record the fact that he agrees with what I have just said. I hope this will encourage adjudicators not to demand sureties in many more cases and that we can get on with the changes in the procedure rules. I beg leave to withdraw the amendment.
My Lords, the purpose of the amendment is to ensure that induction centres have access to independent advice. The matter was debated in Committee, when the Opposition tabled an amendment with the same words, except that it referred to legal advice. The Government argued that no steps would be taken in an asylum case that required legal advice at that stage. The noble Lord, Lord Kingsland, was rightly dissatisfied with that answer, because early access to legal advice can only facilitate the subsequent stages of the process. The amendment went to a vote and was lost.
This is a modest amendment. It is an attempt to find a position that would be in accord with what the Minister said in Committee. It also picks up on a suggestion made by the noble Lord, Lord Dubs, in a debate on access to legal advice in accommodation centres that people would also benefit from other types of advice.
The noble Lord, Lord Bassam, claimed at that stage:
"The induction programme is not, however, part of the decision-making process".
He said that how the decision-making process will work would be properly explained to people,
"so that they can get access to good-quality legal advice before decisions are made. The induction programme opens up the system for them so that legal advice is available to them before a decision is made".
He also said:
"I am sure that the induction process will be properly thought through and carefully designed and that people who are part of that process will be properly trained. Of course, it is not a question of applying pressure on people; it is about helping them through a process and ensuring that they understand it".—[Official Report, 17/7/02; cols. 1281-90.]
Those objectives can best be achieved by ensuring access to independent advice. The amendment would ensure that the induction process was fair. The independent advisor could advise on children's needs, make health referrals, explain the system, discuss doubts and fears and help the person find legal advice. The independent advice could be provided in the centre or near enough in the locality.
I hope the Minister will accept that this is a modest amendment. It is compatible with what the noble Lord, Lord Bassam, said in Committee. I hope that he has not changed his mind. The amendment is not much to ask. I beg to move.
My Lords, I support the amendment. If these unfortunate people are denied independent advice at any stage while they are in the United Kingdom before they are granted asylum—if they are to be granted asylum—we must ask why. I am sure that the Minister intends that everything should be above board—I genuinely mean that. If that is the case, it is logical that at any point in the proceedings, wherever they are and whatever is happening, they should be able to have access to that advice. For that reason it is very important that my noble friend the Minister takes the point seriously.
My Lords, I support the idea in principle, but I do not think that it ought to be included in the Bill. I do not know what the Minister has in mind in this regard. I hope that in practice, where it is suitable, such independent legal advice will be given. However, I cannot see that it has any part to play in the Bill.
My Lords, I shall briefly but firmly support the amendment. The noble Lord, Lord Dholakia, has described it as modest. He is being modest. It is certainly practical, pragmatic and important. I echo the noble Lord, Lord Judd, in asking what on earth would be gained by refusing a requirement that people must have access to independent advice.
My Lords, it is pleasant to have one's words quoted back at one. I am grateful to the noble Lord, Lord Dholakia, for rehearsing part of my argument from Committee. I want to make it plain that the Government have no intention of frustrating or preventing those seeking asylum from seeking independent legal advice. I pointed out in Committee that that is made clear in the White Paper in paragraph 4.36, which says:
"While access to legal advice is not a pre-requisite to initial decision making, and should not hold up the decision-making process, the Government is committed to ensuring access to quality legal advice at that, and all later stages, for all asylum seekers whether or not they are in an Accommodation Centre".
I remind the House what happens in the induction programme. It is not part of the decision-making process. Let us be clear about that. At that stage no consideration will be given to the merits of an individual's asylum claim. The induction programme and process is aimed at giving asylum seekers information about the overall process and about their rights and responsibilities within that process. Our case is that at that stage there will be no need for legal advisers to be present when such information is being provided.
Information about legal advice will form an important part of the induction programme. Those seeking asylum will be advised on how they can best access legal advice and where it will be available. Before a person leaves the induction centre they will, for example, be given information about how they can access legal advice in the area in which they are likely to be living. They will also be given a date for when the interview on the substance of their asylum claim will be held. That will normally be two to three weeks from the date on which they leave the induction programme.
All asylum seekers will have the opportunity to discuss their claim before that interview if they wish. Applicants who spend longer in the induction centre will not be at a disadvantage compared with others since the timing of the substantive interview depends on when the person leaves the centre, not on when he or she arrives.
I entirely agree with the point made by the noble Lord, Lord Clinton-Davis, that there is little point in imposing a requirement that legal advice be provided at that stage.
My Lords, we do not think that there would be anything to gain by including the proposed requirement in the Bill. This point was raised in an earlier debate.
My Lords, what is so often the problem, as those of us who work with people in these types of situation realise, is that there is a very long line between the policy and the intention of Ministers who head up that policy and what actually happens at the point of action. Consequently, if people feel that they need independent advice because the system is not operating as it should, they should be able to have access to that advice.
My Lords, as I said, it is not our intention to deprive, to deny or to obstruct the provision of independent legal advice. I quite understand my noble friend's point.
My Lords, I accept that; I may have been thinking back to the first time that we discussed the issue, when the words "legal advice" were, I think, used. I understand exactly the point that the noble Lord, Lord Dholakia, has made, but other noble Lords have mentioned the need to ensure that legal advice is available at this stage. We are saying that access to advice—legal advice and other forms of advice such as healthcare advice—will be made available through the induction programme process. This amendment is the wrong way to achieve that objective. We are arguing quite firmly that it is unnecessary to impose this obligation at this stage.
The induction programme is very much separate from that process. The induction programme is meant to open up and provide access to all the other services, including advice, that we feel that asylum seekers will need, so that they can be assisted as they go towards the decision-making process. I hope that I have persuaded your Lordships that it is unnecessary to pursue the amendment at this stage.
My Lords, as I am sure the Minister remembers, the Joint Select Committee on Human Rights drew particular attention to the importance of access to legal advice for very vulnerable people who are under the control of the state. In our 17th report, we said that it was particularly important not only that the Government tell Parliament exactly how the advice will be provided, but that they carefully monitor whether access to advice is available. I appreciate that it may not be necessary to encumber the Bill with specific duties, but can the Minister give the House an assurance that this will be very carefully monitored, and that we will be able to get information from the Government about how access to advice is being given in practice to this highly vulnerable group of people?
My Lords, the point is that this is a highly vulnerable group of people. Consequently, we want to have a thorough and rigorous induction programme so that asylum seekers have access not only to legal advice but to healthcare advice and support and so on. We recognise that those are a fundamental part of human rights, and I am sure that that view is shared on all sides of the House. I am therefore happy to give an assurance that we will monitor and keep under very careful scrutiny the issue of access to legal advice. Our stated aim in the White Paper, as I read out earlier, is to ensure that that happens.
The noble Lord, Lord Hylton, asked how many centres will carry out the induction programme. Our best estimate is that we may eventually need approximately 10 centres across the UK. It is to be a thorough and national programme. We will be providing very good facilities at the induction centres and programmes that will enable people to understand exactly how the process will work, their part in it, and how they will be able to access advice and services such as healthcare.
My Lords, I am very conscious of the time. The Minister was unable to convince either side of the Chamber in Committee, and he has been unable to convince either side today. I should have hoped that he would be able to accept this very straightforward amendment. As he has not done so, I think that he can take it from me that we shall return to the issue at Third Reading, when we might seek the opinion of the House. I beg leave to withdraw the amendment.
moved Amendment No. 50:
Page 35, line 37, at end insert—
"(5) Subsection (6) applies where the Secretary of State arranges for the provision of a programme of induction (whether or not he also provides other facilities to persons attending the programme and whether or not all the persons attending the programme are subject to residence restrictions).
(6) A local authority may arrange for or participate in the provision of the programme or other facilities.
(7) In particular, a local authority may—
(a) incur reasonable expenditure;
(b) provide services outside its area;
(c) provide services jointly with another body;
(d) form a company;
(e) tender for or enter into a contract;
(f) do anything (including anything listed in paragraphs (a) to (e)) for a preparatory purpose.
(8) In this section "local authority" means—
(a) a local authority within the meaning of section 94 of the Immigration and Asylum Act 1999 (c. 33), and
(b) a Northern Ireland authority within the meaning of section 110 of that Act."
On Question, amendment agreed to.
Clause 64 [Serious criminal]:
My Lords, Amendments Nos. 51 and 52 arise from the debate on this clause in Committee on 17th July. Under the terms of Article 33 of the refugee convention, a person who is defined as a "serious criminal" may be returned to another country even where he is at risk of persecution on the ground that he constitutes a danger to the community of the country which is hosting him.
Clause 64 seeks to introduce a statutory presumption into the United Kingdom's domestic law that a person is a serious criminal for the purposes of the refugee convention if he has been sentenced, either in the United Kingdom or abroad, to a period of two years' unsuspended imprisonment. The presumption can be rebutted; but the burden of proof would be reversed.
I shall not detain your Lordships by repeating the detail of the arguments that I advanced in Committee on 17th July, at col. 1297 of the Official Report, as to why the approach taken by the Government in Clause 64 may be flawed. In brief, what I said on that occasion was, first, that the Government's approach differs from the text of the refugee convention in that the presumption in the clause arises in relation to the punishment imposed rather than the crime committed; secondly, that the inflexible criterion of two years' imprisonment would not cover a situation where someone was convicted of a particularly serious crime, such as dealing in child pornography or drugs, but was sentenced to perhaps 14 or 18 months, perhaps with a substantial discount for an early plea of guilty; and, thirdly, that the proposal in the clause that relates to the sentences imposed for crimes committed abroad takes no account of the sentencing policies or the applicability of the rule of law in foreign countries.
Under the clause as it stands, someone sentenced to two years or more in Iraq or North Korea, for example, would be considered a serious criminal for the purposes of our domestic law irrespective of the crime they had committed, even if it was merely speaking out against the regime.
This was a point, as I recall, supported by the noble Earl, Lord Russell, who raised the interesting question of whether the definition of "serious criminal" would have applied to several past Commonwealth Prime Ministers who had been imprisoned by British colonial governments. I see that the noble Earl's Question for Written Answer on this issue was answered by the noble Baroness, Lady Amos, on 24th September with the noble Baroness saying that the information was not available and that the necessary research would involve disproportionate cost. I look forward to hearing what the noble Earl has to say on the point a little later on today.
These amendments, which are identical to the ones that I tabled in Committee, would change the test so that a person would be presumed to be a serious criminal if he had been convicted of a crime which carries a maximum penalty of 10 years' imprisonment or more—rather than using the criterion of the length of sentence imposed. This would include such offences as trafficking in child pornography, robbery, homicide offences and serious sexual offences. As I explained in Committee, this is also by no means a perfect solution. It would not, for example, cover crimes such as the possession of child pornography, dealing in Class C drugs or racially aggravated assault.
The noble Lord, Lord Filkin, undertook to reflect on the points that were made in that debate. In particular, I remember inviting the noble Lord to consider whether it would be more appropriate to list the specific offences to which the definition of "serious criminal" would apply in a schedule to the Bill, as the Government did in the Criminal Justice and Courts Services Act 2000, for the definition of "offences against a child".
I see from the Marshalled List that no government amendments have been forthcoming as a result of that reflection. I have, therefore, tabled these amendments in order to allow the noble Lord, Lord Filkin, the opportunity to explain to your Lordships why the Government have decided to reject the arguments advanced in the Committee debate. I beg to move.
My Lords, Amendment No. 53 in the names of my noble friends Lord Dholakia and Lord Avebury has been grouped with the two amendments just spoken to by the noble Lord, Lord Kingsland. However, Amendment No. 53 goes a good deal further in proposing the removal of the whole of Clause 64.
The relevant article of the Geneva Convention on asylum seekers states:
"1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country".
It is plain on the face of that article that the question of whether any particular crime that has been committed is particularly serious and whether the criminal constitutes a danger to the community must, under Article 33(2), be decided on a case by case basis. Article 33 is, of course, binding on the United Kingdom as a matter of treaty law. Indeed, the United Kingdom law goes further than that in providing that an asylum seeker cannot be removed in breach of the United Kingdom's treaty obligations.
Clause 64 applies a new meaning to Article 33(2). In other words, it applies a new and wider right of what is known as refoulement—a right of return. It therefore rewrites the Geneva Convention. That is plainly a breach of the treaty obligations of the United Kingdom. Clause 64 provides that a sentence of two years or more creates an irrebuttable presumption that the crime is a particularly serious crime and a rebuttable presumption that the perpetrator constitutes a danger to the community. The presumption that any crime resulting in a two-year sentence is particularly serious is, in my view, inappropriate whether that presumption is rebuttable or irrebuttable. Many sentences of two years are based not on the particular seriousness of the crime involved but on the previous record of the accused. The crime may in itself be quite a trivial one committed by someone with a long record.
I believe that no presumption is justified, let alone an irrebuttable one. As a matter of common sense, a long sentence of, say, seven years or more may well be evidence that the offence is serious. One does not need a legal presumption to enable one to adduce that. As for the danger posed to the community by the criminal concerned, why do we need a presumption? Some crimes, of course, speak for themselves. Someone who has been convicted of a serious rape, for example, is plainly a danger to the community. That crime speaks for itself and it should be left to do so. Let us take the example of the noble Lord, Lord Archer of Weston-Super-Mare, who has been sentenced to a period of four years. I believe that there should not be even a rebuttable presumption that someone of that kind is a danger to the community. I suggest that the noble Lord clearly is not.
Plainly, the Government are rewriting the Geneva Convention to make it easier to return people to a place where they face prosecution. That is in breach of treaty obligations and international law. The Geneva tests should be applied as they stand. Clause 64 is an unacceptable gloss and I believe that it should be deleted from the Bill.
My Lords, I am sorry to disappoint the noble Lord, Lord Kingsland, as I shall not comment on the Written Answer of the noble Baroness, Lady Amos, on Commonwealth Prime Ministers because, in the literal truth of those overworked words, "words fail me". A good many of those who subsequently became Commonwealth Prime Ministers were friends of my parents and a good many of them suffered sentences of imprisonment. The test in the UN convention is whether these people are a danger to this country. I can say, in some cases from personal memory, that in most of those cases they were not.
My main objection to the use of the test by the number of years is that it is a purely relative test. In our own history, a number of crimes would be regarded as serious in the 17th century, very serious in the 18th century, perhaps not serious in the 19th century, not serious in the early 20th century but becoming serious again in the 1990s. This movable definition of a "serious crime" is rather curious, especially when we apply it to the question of whether refugees are a danger to this country because it is clear under this test that the countries most liable to produce genuine refugees are also the most likely to produce people who fall foul of this test.
I have accepted the recommendation of the noble and learned Lord, Lord Williams of Mostyn, to read the chapter in the dossier on human rights in Iraq. To have received a sentence of two years' imprisonment in Iraq you do not actually need to have committed any crime whatsoever, you merely need Saddam Hussein to think that you might in the future possibly do so—that you are, as they used to put it in the case of Roman Catholics in this country, vehemently suspected. That means that the more dangerous a country is for potential refugees, the more people are liable to be returned there.
The other really serious point about the clause is that it reverses the burden of proof. Under the convention, it is incumbent on the state that wants to refuse a refugee to prove that he is a danger to the community in which he intends to live. One has to prove not that he has been a danger to what may have been the tyrannical regime under which he once lived but that he is a danger to us.
If that is the presumption, the refugee from a genuinely dangerous country will have a good deal of difficulty finding witnesses, collecting evidence and securing the production of documents. If I were an Iraqi refugee, I should not like to have to write to Baghdad and ask my friends to turn up here to testify that I was not likely to be a danger to the British state. If my friends obliged me in that regard, I should probably be passing a death sentence on them, and it would not be my wish to do that.
The more dangerous it is to live in a particular country, the harder it will be to rebut the presumption. In really tyrannical states, it will be impossible, in middling ones it will be difficult and it will be easy only if one comes from a state that is perfectly safe. That is rather like the test of ducking witches. The guilty witch floated and was safe and the innocent witch sank and was drowned. I do not believe that that is the way in which we should administer justice.
My Lords, Clause 64 was inserted into the Bill after the Joint Committee on Human Rights had scrutinised the Bill and therefore it is not part of our 17th report. I shall not repeat anything that other noble Lords have already said, all of which I agree with, but I want to make one or two additional criticisms, which I believe would exercise the Joint Committee if it were in this country and able to do the scrutiny now. I should be grateful if the Minister would deal with my points tonight or, if we can postpone consideration of this matter as well, at Third Reading.
Apart from the inflexibility of the irrebuttable part of the presumption and apart from the lack of proportionality built into Clause 64—my noble friend Lord Goodhart referred to that—we should consider what the effect of the provision will be in relation to appeal rights. Clause 64(7) states:
"Subsection (8) applies where . . . a person appeals under", various provisions of this legislation or the Special Immigration Appeals Commission Act. It also applies where,
"the Secretary of State issues a certificate that presumptions under subsection (2) or (3) apply to the person (subject to rebuttal)".
The words, "subject to rebuttal" are inaccurate because the presumption of serious crime is not subject to rebuttal. That part of the clause is wrongly drafted.
Perhaps more importantly, Clause 64(8) states:
"The adjudicator, Tribunal or Commission hearing the appeal—
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that presumptions . . . apply (having given . . . an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in section 75(1)(g)".
We therefore need to find out what "section 75(1)(g)" means. It involves an appeal on the ground,
"that the removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights".
In other words, the serious consequence of accepting Clause 64 as it stands is that it will obliterate rights of appeal in relation either to the refugee convention or the European Convention on Human Rights unless the presumptions can be rebutted. That seems to be a draconian consequence of statutory presumptions based on conviction by a foreign court leading to a sentence of imprisonment of only two years. For that additional reason, if the Joint Committee were available to give advice, we should have drawn those implications to the attention of the House.
My Lords, I support all the amendments in this group. I want to raise another reason why Clause 64 is objectionable.
"The broad nature of this provision would cover those individuals detained under the Mental Health Act 1983 and who have been neither convicted of a particularly serious crime nor even been tried in relation to a charge of such a crime. In addition, and more disturbingly, it would apply to individuals who are placed in such institutions because of the potential harm they might inflict on themselves and who do not pose, nor have ever posed, a risk to society. It is quite possible that survivors of torture who are suffering from trauma could fall into such groups".
I ask the Government whether they have discussed this aspect of the clause with the UNHCR and, if so, with what result; and if they have not, will they please do so without delay?
My Lords, I shall detain the House for one minute. I point out to the noble Lord, Lord Filkin, that yesterday evening we discussed the situation in Belarus. I mentioned during that debate that two journalists had been convicted of insulting President Lukashenko and were sentenced to two and a half years' hard labour. If either of those people wished to come here and seek asylum, they would be barred by Clause 64.
Another case, which I mentioned this afternoon at Question Time, is that of Mr Manouchehr Mohammadi, the leader of the students in Tehran. I asked whether Mr Straw would raise his case with the Foreign Minister, Mr Kharrazi, during his visit today to Tehran; I know that he has done so previously. We are in an absurd situation. The British Government—the Foreign Secretary—are interceding on behalf of this man, who is a student leader and who was imprisoned after the student unrest in 1999 and has been in Evin prison ever since, where he has been tortured. However, if he came to the United Kingdom and sought asylum, he would be absolutely barred by the provisions of Clause 64. That does not make any sense.
My Lords, the provisions in the Bill relating to presumptions arising out of sentences imposed by governments in countries overseas are particularly dangerous. Almost by definition, people seeking political asylum in this country have been opposed to the regimes of the countries from which they come and have in the process subjected themselves to the draconian laws that are often prevalent in those countries. I quote from my South African experience. In South Africa under the sabotage legislation there was a minimum sentence of five years for the most innocuous offences. I recall that one offence was that of throwing a brick through a window with political intent and a conviction of six or seven years obtained. There are countless other examples. I support both amendments.
My Lords, I propose to respond, first, to Amendment No. 53 and to explain why the Government are clear that this is an important element within their overall policy of meeting fully their obligations towards refugees and asylum seekers who genuinely need protection. I also want to explain why they are stepping up their efforts to spotlight and remove those who do not need such protection and who have no valid claim to remain in this country.
In legislating in this respect, we want it to be known by the refugee and asylum-seeker community, and by the public at large, that refugee status should not be taken for granted, particularly, as the House will be well aware, as there is substantial trafficking in illegal migration into Europe and into Britain itself.
Clause 64 defines the term "particularly serious crime" in Article 33(2) of the refugee convention as any offence for which a sentence of at least two years' imprisonment has been imposed. We decided on that yardstick in order to make it clear that high standards of conduct are expected from refugees who have the privilege and advantages of residence here. As has been pointed out, the very small minority who commit serious offences will be expected to argue their case for remaining here by seeking to rebut the presumption that they are a danger to the community. I should of course point out that at that stage they will have been convicted of the criminal offence, which carries a sentence of two years. At present, with no formal definition—
My Lords, I am sorry to interrupt so early in the Minister's reply. However, when he talks of a "serious offence" in answer to the point raised by the noble Lord, Lord Joffe, does he also mean political offences, as classified by critics of foreign governments, for example—those who oppose them and are convicted of political offences abroad? Are those, too, to be regarded under this provision as "serious offences" for this purpose and for the purpose of the presumption?
My Lords, if the noble Lord, Lord Lester, will bear with me for a while, I shall be pleased to come later to the point about sentences imposed abroad. At this point, I am keeping matters relatively simple and am focusing on sentences imposed in this country where we consider a two-year sentence to be a reasonable definition of serious criminality. Given the two-year sentence, a person will have, by the judgment of a court, committed a felony, and a serious one at that.
At present, with no formal definition of "particularly serious crime" in Article 33(2), it is too easy for refugees to rely on the protection of the refugee convention in order to secure their stay. The UK would not be the only country where an "actual sentence" criterion was used. In Germany, it is three years or more; in the USA, it is one year or more.
Therefore, we do not think it unreasonable to put those who fall within the scope of Article 33(2), due to criminal behaviour, in a position where they have to defend their right to remain here. The courts, not the Home Secretary, will always be the final arbiter in this matter. If people in that category are genuinely not a danger to the community, as judged by the court, and their rebuttal of the presumption is backed up by the independent appellate authorities, they need have no cause for concern. As I believe we said in Committee, in those circumstances it is almost inconceivable that a person would not apply a challenge to the court and that he would not receive the benefit of legal aid if needed.
In our view, one essential element of the definition is a reference to the actual sentence—
My Lords, I believe that, unless it is something that one experiences as one goes by, time does not have an inflationary consequence. We are talking about the length of time, not a financial sentence.
Our approach is also simple and practical. It will immediately be clear from the legislation when Article 33(2) applies without any need for a specific list of offences. The noble Lord, Lord Kingsland, was quite right. We had a thoughtful discussion in Committee and we reflected on the matter considerably over the summer. We wrote to the noble Lord, Lord Kingsland, explaining—I apologise; I shall check my records—
My Lords, I have been given an extract from a letter without the name of the person to whom it was addressed. Clearly we wrote to someone. That is not a very satisfactory response. Whomever we wrote to, I shall ensure that the noble Lord, Lord Kingsland, receives a copy or, indeed, a further copy if, in fact, we had sent one in the first place.
In essence, we did not depart from the arguments that we advanced when we considered the matter in Committee; that is, that the benefit of the actual sentence is that a court takes into account the offence and the circumstances of the individual at the same time. We considered that, if one is seeking to identify a measure, that, in our judgment, is more likely to be a fair measure than the alternative.
In Committee, we also reinforced our view, having considered it over the summer, of the position in Scotland. The noble Lord, Lord Kingsland, will recall that Scotland does not have anything like the same level of offences with prescribed maximum offences, and therefore some difficulty would arise in that respect.
Perhaps I may also illustrate that by referring to some of the cases which would not be caught in these circumstances. If the definition were limited to offences with a maximum term of imprisonment of 10 years, then offences carrying a maximum sentence of seven years or less would be omitted from the scope of Article 33(2). For example, a refugee sentenced to a maximum of seven years for child abduction would evade the application of Article 33(2).
Other offences with a seven-year maximum sentence are theft and the placing or dispatching of articles to cause a bomb hoax. The five-year maximum sentence level includes the production, supply or importation of class C drugs and aggravated vehicle-taking where a death occurs. We do not believe that it would be reasonable to omit serious offences of that kind from the scope of the article.
All the offences that I have mentioned are those in respect of which a court, following a conviction, might choose to make a recommendation for deportation. That, in itself, is an important indicator of seriousness. Previous cases in which Article 33(2) has applied have often involved a court recommendation for deportation.
I turn to the matter of a child pornography offence which carries a sentence of less than two years. In a sense, that provides us with an argument for having a threshold of less than two years. However, on balance, we feel that that would be too low.
With regard to crimes abroad, the clause does not apply where an offence committed abroad could not attract a sentence of at least two years if committed in the United Kingdom. Therefore, offences of the type described in Iraq would not meet the definition as one would not be sentenced at all—let alone for two years or more—in the United Kingdom. I hope that that is of comfort.
My Lords, I am grateful to the noble Lord for giving way. Is that really correct? There are still offences in this country—sedition-related offences—which may seem archaic, and offences in relation to public order, which, if one looked at the nature of the offence, would match a political offence committed in another country. The fact that the conduct relied upon in Iraq would not in fact have led to a conviction is not the way that the Bill is formulated. Therefore, one cannot simply say that there is no double criminality involved and that therefore there is protection in that way because that is not how the clause has been formulated.
My Lords, perhaps I may reflect on that and return it to later. The noble Earl, Lord Russell, talked about different offences being seen differently over time. He is right. I do not believe that any government can do anything about that. Governments and society operate with the values, judgments and priorities that are in force at the present time. I simply mark the point that I made previously; that is, having already proven criminality, one can avoid that by showing that a person is not a danger to the community. Again, that is a further defence of the type that we have just discussed. If a person who had been convicted could demonstrate that he was not a danger to the community, he would be at no risk of deportation in that respect.
My Lords, a moment ago, the noble Lord kindly said that he would reflect further on the important point made by the noble Lord, Lord Lester. However, when he reflects on it, will he also reflect that it is not simply a matter of the nature of the offence; it is also a matter of the nature of the conviction. In some countries, the rule of law as we know it does not run. A conviction may be totally outrageous and, perhaps for the reasons given by the noble Earl, Russell, it will be very difficult, if not impossible, to find the rebuttal evidence which is required.
My Lords, I take the point and I shall respond to it immediately. In the circumstances advanced by the noble Lord, I should have thought that an individual, or his advocate, would have a relatively easy case to make before the adjudicator. It would be that although his behaviour may have incurred a sentence in a foreign court, by no British values or standards of behaviour could the person possibly be seen as a threat to the community, so he would not be at risk.
I will speak further about the foreign issue because it is complicated. It is worth emphasising that Clause 64 will apply to overseas crimes only in rare circumstances. The only way it could happen is where the person is first recognised as a refugee in the United Kingdom, leaves the UK and commits a crime abroad—that is unlikely to be the case in Iraq since the person has a fear of persecution there—and returns to the United Kingdom. The further protections and tests that are advanced would also apply. Clearly, the offence would have to be recognised in Britain and the person would have to be seen as a danger to the community in Britain—not as seen abroad.
My Lords, I am grateful to the Minister but let us suppose that the noble Lord, Lord Joffe, had come to this country as a refugee from South Africa during the apartheid years, then returned to South Africa—perhaps in a clandestine way—still during apartheid. I hope that noble Lord does not mind my using him as a hypothetical example. Say he threw a brick through Dr. Verwoerd's window to make a political protest and was sentenced to two years' imprisonment for maliciously damaging property with political intent.
On his return to this country, why should the noble Lord have an irrebuttable presumption against him that he was guilty of a serious crime in apartheid South Africa, then have to discharge the burden of showing that he is not a danger to the community as a result of his conduct? Why should the noble Lord have to go through all that? How can that possibly be compatible with our obligations under the refugee convention?
My Lords, on the wing, in the hypothetical circumstances of the noble Lord, Lord Joffe—whom we are delighted to welcome to the United Kingdom, brick throwing or not—he would not receive a two-year custodial sentence in the United Kingdom for throwing a brick. He might well be fined. Therefore, he would not be at risk.
I should like to reflect further on the point of whether the Secretary of State has a power of discretion in such circumstances, as to whether or not to press the point. I will return to that matter later.
As to the noble Lord's points about the UK's obligations under the ECHR, it is correct that the current wording in subsections (7) and (8) has an impact on ECHR appeals but that is a mistake, caused by an amendment to the appeals provisions. In the next group of amendments, we are correcting the wording of those subsections, so that the actual references are to the refugee convention only, not to the ECHR. The UK will of course continue to take full account of ECHR issues in cases where Clause 64 applies—as will the courts. It has been a good afternoon for complexities of that sort.
On the reverse burden of proof, other countries—such as the United States and Germany—have introduced subsequent provisions. Nothing in the convention prohibits the introduction of this provision. Clearly it is crucial that there is an independent appeal to the adjudicator, who can make a judgment as to whether or not it is a rebuttable presumption.
We are not rewriting the convention. It is open to states to decide within reasonable limits what amounts to particularly serious crime—as has been done.
On the points raised by the noble Lord, Lord Hylton, we have not discussed the issue with the UNHCR but would be perfectly happy to do so. On mental health cases, we have to provide in Clause 64 if a refugee convicted of an offence is to be detained under the Mental Health Act. We expect few cases of that kind but such people could be a danger to the community when released. The Home Office would take great care in deciding whether or not to apply Article 33.2 in a mental health case. That clearly implies the answer to my previous reflection—that there is discretion by the Home Secretary in the application of this as well, which, it is to be hoped, would free the noble Lord, Lord Joffe, from the burden of having to rebut any assumption about his behaviour in South Africa.
I recognise that the issues are complex. I hope that I have, at least in part, put the mind of the House to rest. There are good reasons for this provision. It will be used appropriately. The Home Secretary will exercise a discretion—and there are protections through a person's right of appeal to the adjudicator.
My Lords, the Minister has been typically careful and full in his reply—and as courteous as he always is. However, his statement that the Government are not seeking to rewrite the convention cannot be sustained in light of all the interventions made in your Lordships' House. It is clear that the presumption in the clause arises in relation to the punishment imposed, not the crime committed. That is a blatant contravention and for that reason, I should like to test the opinion of the House.