My Lords, I am very grateful to the noble Baroness for that contribution. I think she recognises the burdens on the Government in dealing with this matter. I also say to her that, clearly, if there is evidence of wrong-doing at a detention centre, it will be investigated. However, I would like to write to the noble Baroness in more detail on that because I cannot address from the Dispatch Box the particular issues that she raises.
However, as to the general principle, we have had a really good debate today on detention. The truth of the matter is that no Government want to detain people more than they have to. I think the figure was quoted of £36,000 per annum for each detainee, which is enough incentive for any Government, not just on humanitarian grounds but on hard-nosed business terms. We do not want people detained, but these are difficult issues and we have vested, quite rightly in my view, the determination of these matters in the courts. It is the courts that determine the period of detention. Although the noble and learned Lord, Lord Lloyd of Berwick, has talked about the legal background to these issues, this is a case where that balance between the Executive and the court system determines outcomes.
I will now try to address the issues in the amendment, which my noble friend Lady Williams characteristically presented with the passion that has driven her through a most distinguished political career. Amendment 9 would require the release of any individual in immigration detention subject to a removal decision after 60 days’ detention, no matter how imminent their removal was. Removal might be due after 62, 64 or 70 days, but 60 days would be the effective limit.
There is an absconding risk in that, which I think noble Lords will recognise. Having a finite limit would give people an incentive not to co-operate with removal. Much of what we have been discussing here has been discussed in very high-minded terms, but there are people in detention who will do everything that they can to ensure that they are not removed. If an individual refused to co-operate with arrangements for their removal—for example, in obtaining a travel document, which requires the co-operation of the detainee—they would be able to benefit from their non-compliance when making a bail application after 60 days of detention, even if the sole reason for their detention and for their not being removed was their lack of compliance. Even if a limit were to be imposed, 60 days is not the right limit, and I hope I can convince noble Lords of that. The Government’s view is that it is not appropriate to legislate to set a time limit for immigration detention.
It is a basic principle of English law, as has been alluded to by a number of noble Lords today, that the burden is on the person who is exercising any power to detain to show that the lawful authority to detain exists. This right is ancient in origin: from habeas corpus to Magna Carta to the 1688 Bill of Rights. There is active judicial oversight to police and protect this basic principle. As was referred to by my noble friend Lord Bourne of Aberystwyth, the well established common law and case law, coupled with active judicial oversight and the Home Office’s own published policies and procedures, mean that detention is used proportionately.
A number of noble Lords, including my noble friend Lady Williams, referred to Hardial Singh. Removal must be possible within a reasonable time—that is the principle that underlies the Hardial Singh judgment. The noble and learned Lord, Lord Lloyd, mentioned Hardial Singh as well. The principles underlying that judgment were endorsed by the Supreme Court; for example, in the judgment in Lumba. The courts have been satisfied for some 30 years that the Hardial Singh principles are appropriate and do not lead to what might be described as indefinite detention.
I hope that I have given some background to the legal framework. Much of it derives from our common-law principles and lies in the relationship between the Executive, the citizens and the courts that resides in common law. I must correct my noble friend on one point of fact; we have checked this. Germany actually has a full 18-month minimum detention period—of course, I mean maximum; even the German economy could not withstand that in all cases.
Perhaps I can also help noble Lords by putting this matter in perspective. A large majority of people leaving immigration detention in 2013—81%—had been in detention for two months or less. During the same period, less than 1% of those leaving the immigration detention estate had been detained for a year or more. Those in long-term detention will be mostly foreign national offenders, who pose a public protection risk, and their detention would have been prolonged by their failure to comply with the removal process. I think I gave noble Lords some numbers on this in Committee. Case law recognises that detention longer than 60 days may be appropriate in some cases and that the legality of detention is highly fact-specific. It is an issue that cannot and should not have an arbitrary upper time limit imposed.
To illustrate that, I will give the example of the recent case of R (Robert Kajuga) v Secretary of State for the Home Department. His Honour Judge Blackett reflected on when detention is reasonable when an individual refuses to co-operate with removal. I hope that noble Lords will excuse me for paraphrasing, but His Honour Judge Blackett came to the conclusion that if a person obstructs the removal process and fails to co-operate, the reasonable period will be longer—probably much longer—so long as the Secretary of State makes real and continuing efforts to ascertain where the detainee has come from and should be returned to. The judge concluded his remarks by observing that, if the period of reasonable detention was not extended by non-compliance of the returnee, those liable to deportation could frustrate the process and work it to their advantage by failing to co-operate with the authorities.
Immigration law is very settled in this area. In my belief, there is no need to legislate. By legislating, we would remove discretion from the judiciary to decide when detention under immigration powers was reasonable. We should not undo such settled case law lightly. Therefore, despite the eloquence with which she has moved her amendment, I call on my noble friend to withdraw it.