My Lords, Amendment 184, in my name and that of my noble friend Lady Hamwee, concerns the power of immigration officers to examine the immigration status of those entering the UK. Clause 20(2) inserts the ability of the immigration officer to curtail existing leave to enter the UK. The amendment would replace the consideration of whether the leave “should be” curtailed, which implies an inappropriate degree of discretion, and substitute “is required to” be.
Also in this group is our opposition to Clause 21 standing part of the Bill. It seems disproportionate that immigration officers should have the power to search premises simply to establish whether an employer should be given a civil penalty for employing an illegal worker, or to establish whether a landlord should be given a civil penalty for leasing a property to a disqualified person. Immigration officers already have powers to search for evidence in relation to criminal offences related to these two activities. Surely it is only in the most serious cases, where a criminal prosecution would at least be being considered, that it would be appropriate for immigration officers to search premises in this way. It is rare for powers of search to be granted in connection with civil penalties in British law, and Clause 21 should not undermine such a principle.
We also oppose Clause 22 standing part of the Bill. This clause allows an immigration officer who is lawfully on premises to seize anything that he thinks may be evidence of any offence, under any legislation, if he thinks it necessary to prevent the evidence being concealed, lost, altered or destroyed. Initially, this appears a sensible approach, to obviate the need to call for police assistance when something is discovered that is not related to an immigration offence—for example, discovering what appear to be class A drugs.
Police officers receive extensive training in securing and preserving evidence, and in the questioning of suspects in relation to the discovery of evidence during searches. In addition to the need to carefully question the subject about the ownership of the items in question, since usually the owner of the premises denies that the item belongs to them, there is the question of whether photographic or forensic evidence is required in situ. I have been involved in searches of premises, and there have been many cases of police being involved in searches of premises where the very facts that the substance in question was on the premises and who it belonged to have been questioned subsequently in court. It is something of which the police have now had extensive experience, and they know how to handle these situations. I suggest that it would take a lot of training and experience for immigration officers to reach the level of expertise necessary to ensure that convictions subsequently take place. Either immigration officers will require extensive, and necessarily expensive, training in evidence preservation and the questioning of those suspected of non-immigration offences, or there is a real danger that valuable evidence will be lost in such cases.
There is also the question of what I might call false positives, when immigration officers seize items that they wrongly believe to be evidence of an offence and then pass them on to the police, placing a significant administrative burden on the police to process, secure and subsequently return the items to the owners. With significant cuts to police resources, the last thing the police need is for immigration officers to dump innocent items on them that they then have to deal with. We therefore believe that Clause 22 should not be part of the Bill. I beg to move.
My Lords, Amendment 184 and the two clause stand part debates in respect of Clauses 21 and 22 give an important opportunity to explore here exactly what the intention is behind the clauses. It is important that the Minister carefully sets out what he believes are the reasonable grounds for immigration officers to conduct a search for documents in respect of illegal working or leasing premises to disqualified persons obtained in the commission of an offence. Will the Minister set out what he means by a search of the premises? At any point, would that include a search of the person? How would that be conducted?
These are very sensitive matters and I want to be satisfied that proper processes are in place, and that people are treated with respect. We often need to remember that asylum seekers have not always had a good experience of meeting officials of the state in other countries, and we must ensure that actions are taken in a proportionate manner and to the highest professional standards. I have the highest regard for the officers who undertake this work for the Immigration Service; they do a very difficult and challenging job.
The noble Lord, Lord Paddick, made an important point when he talked about the extensive experience and knowledge that police officers have when it comes to conducting searches and preserving evidence to secure convictions. Are we confident that the immigration officer would have this knowledge? The noble Lord makes another important point when he talks about the burden of bureaucracy arising from items taken during a search that are then passed on to police but in the end do not secure any convictions because there is no offence at all.
My Lords, before the Minister replies to the noble Lords, Lord Kennedy and Lord Paddick, may I add a word in support of their points, particularly the point about proportionality that has just been made by the noble Lord, Lord Kennedy? Why does the Minister feel we need to add to those powers that immigration officers already have, as set out in chapter 16 of the Home Office Enforcement Instructions and Guidance?
Would he also comment on the extensive powers that immigration officers already have to search without warrant in connection with a criminal offence? What is envisaged here, as I try to understand it, is to give those same officers powers to search premises without a warrant, in circumstances where they do not have any reasonable suspicion that a criminal offence has been committed. Is that the case? Is there no restriction in this clause authorising an immigration officer to act only where it is not practicable to obtain a warrant? If that is so, this is quite an extension of powers, and one that is disproportionate in the way that the noble Lord, Lord Kennedy, has described.
I am obliged to the noble Lords, Lord Paddick, Lord Kennedy and Lord Alton, for their observations on these provisions. I shall begin with Amendment 184, which seeks to insert the phrase “is required to” in place of “should”, and explain why that would not be appropriate. As I observed, Amendment 184 seeks to ensure that an immigration officer’s power to examine a person for the purpose of making a decision to curtail their leave is limited to whether the person’s leave is required to be curtailed. The use of the words “should be”, which appear in Clause 20, reflects the wording already included in paragraph (2) of Schedule 2 to the Immigration Act 1971, which refers to examination on the basis of whether a person should be given leave or refused it. It naturally follows that the power to examine for the possible purpose of making a curtailment decision is on the same basis. Indeed, it would be rather strange if one test differed from the other in that context.
The effect of the amendment would be to fetter the Secretary of State’s discretion under the Immigration Act 1971 to decide when a person’s leave should be curtailed. The basis on which leave may be curtailed is set out in the Immigration Rules. Some of these are mandatory probations and some are discretionary. An example of a discretionary ground on which leave may be curtailed is when the Secretary of State considers it undesirable to permit a person to remain in the United Kingdom in light of his or her conduct, character or associations. Immigration officers therefore need to be able to question a person to ascertain whether curtailment is or is not appropriate. I can reassure the noble Lord that immigration officers may question only people who have already entered the United Kingdom for immigration enforcement purposes where they already have some information, or reasonable grounds for suspecting, that the person is in breach of immigration law. Therefore it would be wholly inappropriate, having regard among other things to the terms of the Immigration Rules, to put in this amendment in the form of a requirement rather than a discretion.
Clause 21 gives immigration officers a power to search premises for documents that might help in determining whether a civil penalty should be imposed on an employer or landlord. This power may be exercised only where immigration officers are already lawfully on premises. I will come back to this point in the context of the observations from the noble Lord, Lord Alton; it is not a question of dispensing with the requirement for a warrant, but I will address that point directly. A primary role for immigration enforcement activity is the disruption of illegal working and illegal renting. We believe it is fitting for immigration officers to have specific administrative search powers where they are exercising powers for a non-criminal purpose.
Immigration officers already have powers to search for evidence of the offence of employing illegal workers and will do so for the new offence of leasing premises to a disqualified person. However, as I am sure noble Lords will agree, it is often more appropriate to impose a civil penalty than to pursue a criminal prosecution. Immigration officers provide employers and landlords with an opportunity, during a visit to the relevant premises, to supply evidence that they have undertaken right-to-work checks before taking any enforcement action. If an employer or landlord is able to do this, no further action is taken against them.
While I understand that some noble Lords may have concerns regarding the reasonableness of having a power of search in the context of a civil penalty, where immigration officers have established through existing powers that a migrant does not have a right to work or a right to rent, and the employer or landlord is unable to demonstrate that they have made the appropriate checks, it does not seem unreasonable for the immigration officer to be able to search for evidence such as payslips or timesheets, tenancy agreements and letting paperwork. This is especially important in cases where a migrant claims simply to be a guest at residential premises or “assisting”, for example, in a restaurant.
While search powers in the civil penalty context are relatively rare, they should not be disregarded purely on this basis when there is a compelling case for introducing them. By equipping immigration officers with these new powers, the Home Office should be enabled to make better-informed decisions as to whether liability for a civil penalty has arisen and help to ensure that only non-compliant landlords and businesses are faced with civil penalties. To put the matter shortly, it would be rather strange if, having made provision for civil penalty, we should say to immigration officers, “You have the power to search if you intend to pursue a criminal prosecution but you have no power to search if you intend to take the lesser step of imposing only a civil penalty”. For that reason, Clause 21 is considered material to these provisions.
Clause 22 provides a power for immigration officers to seize anything they may find in the course of exercising a function under the Immigration Acts while lawfully on premises where they believe that it has been obtained in the consequence of committing a crime, or where it is evidence of an offence. Clause 22 allows them to seize such an item but only to prevent it being concealed, lost, altered or destroyed, and to retain it unless a photograph or copy is sufficient. It is sometimes the case that, while searching premises using immigration powers, immigration officers may encounter quite clear evidence of a criminal offence. Presently in such circumstances they are required to contact the police and invite them to attend the premises in the hope that perhaps some further steps may be taken to retain the relevant material. In the mean time, they have no power to prevent that material being removed, destroyed or simply taken away somehow, which seems a somewhat unusual situation for them to be left in.
This power will therefore enable immigration officers to retain such material in circumstances where they are already lawfully on premises, either by virtue of a warrant or because they have been given entry but only for the purpose of preserving that evidence. They will not be responsible for the chain of evidence through, for example, to a prosecution. They will take steps to hand that evidence over to the police at the first available opportunity. For that purpose, they will be trained with regard to obtaining that evidence. I make clear, to reassure the noble Lord, Lord Kennedy of Southwark, that there is no provision in Clause 22 for any search of the person. That power will not be conferred on immigration officers in this context.
As regards proportionality, it respectfully appears to us that it is appropriate and proportionate that immigration officers who encounter material which on the face of it is the product of some criminal act should be able to at least preserve that evidence pending its availability to the investigative authorities. I add that, in fact, some immigration officers have power under Section 19 of the Police and Criminal Evidence Act 1984 to search for and recover evidence of a crime. However, that power is exercised only when the relevant immigration officers have gone through the full training that would also be available to police officers. Therefore we accept that that is an exceptional case. Here there will be suitable training for immigration officers for the purpose of seizing and retaining evidence of a criminal act.
My Lords, I am grateful to the Minister for what he said about the training of immigration officers. But before he goes on to the next point in his argument, does he recall that in 2014, in the case of R v Ntege and Others, his honour Judge Madge stayed the prosecution because of both bad faith and serious misconduct? He held:
“I am satisfied that officers at the heart of this prosecution have deliberately concealed important evidence and lied on oath”.
In addition, in 2010, in Abdillaahi Muuse v Secretary of State for the Home Department, the Court of Appeal concluded that the conduct of what was then the Immigration and Nationality Directorate in the unlawful imprisonment of Mr Muuse,
“was not merely unconstitutional but an arbitrary exercise of executive power which was outrageous”.
How can the Minister, in extending the powers that already exist for immigration officers, ensure that there is not a repetition of those sorts of cases?
Clearly, I will not comment on the detail of individual cases in this context. Those findings were made, and clearly they indicate conduct that was wholly unacceptable, and—let us add—quite exceptional, with two cases cited in many years. It is regrettable that those events occurred, but let us remember that they are isolated events. As regards the general powers of immigration officers, they will be provided with training and guidance on the use of their powers and are given enforcement instructions in guidance.
My Lords, on that very point, I know that the Minister cannot do it today, but would he be prepared to write to noble Lords, or to the noble Lord, Lord Paddick, and explain what that training and guidance will be? He said it would be very extensive, and I am sure it will be, but I wonder how long it will take, what the cost will be and how practical it will be.
I should add that the guidance on immigration officers’ use of powers is set out in the enforcement instructions and guidance, which are published on the UK Government website. But I would be content to write to the noble Lord to set out an outline of the proposed training for those immigration officers who are going to have the limited power conferred by Clause 22 with regard to the preservation of evidence that they believe has been the product of some criminal act.
There was one further point made by the noble Lord, Lord Paddick, about the false positive, as he termed it, and the administrative burden. I respectfully suggest that that burden will be no greater than the burden imposed upon police officers in circumstances where immigration officers believe that they have encountered the product of a criminal act and then telephone or radio the police and invite them to attend a premises. So there is a question of balance here, but it is not, on the face of it, going to be a disproportionate burden when compared to the present circumstances in which the matter is, in any event, brought to the attention of the police.
My Lords, I thank the noble Lords, Lord Alton of Liverpool and Lord Kennedy of Southwark, for speaking to this group. I also thank the Minister for his explanation of Amendment 184. I will read with care what he said on that particular amendment.
As far as Clause 21 is concerned, which is the power to search premises simply to establish whether a civil penalty should be imposed, I am a little confused, because I am not sure how an immigration officer can establish whether a breach of the law is something that should be responded to by way of criminal prosecution or by civil penalty until the search of the premises and the necessary paperwork has been found. If the immigration officer has reasonable cause to suspect that a criminal offence has been committed, there is an existing power to carry out that search. Now it may be that in the course of that search, using the power under the suspicion of a criminal offence having been committed, the paperwork is found to show that it is not a serious breach and therefore that a civil penalty would be more appropriate. But the search can still be conducted without a specific power to search on the basis of a civil penalty.
The Minister said that having the power to search on the basis of a civil liability would ensure that only non-compliant employers and landlords would have action taken against them. But surely a compliant employer will offer up the necessary documentation and a search without the consent of the employer or landlord will not be required. Therefore, again, I do not see why that power is necessary.
As far as Clause 22 is concerned, if it were simply a case of restraining people who were on the premises from interfering with something that was believed to be evidence of a criminal offence while the police are called and come to investigate the matter, I might be a little more sympathetic. But the Minister kept talking about seizing and retaining property, and said that immigration officers would not be in the evidence chain. Clearly, if they seize and retain the property, they are in the evidence chain: the police cannot give evidence of the fact that the property was in the premises if the immigration officer just appears at the police station with the property and tells the police officer, “I found this”.
As I said earlier, it is very important to question people in situ about, for example, a bag of drugs. It may be necessary for there to be forensic examination of those drugs for, say, fingerprints or perhaps even DNA, or for the property to be photographed in situ. That is something that I would have confidence that only the police would think about, rather than an immigration officer who is there to enforce the law on immigration rather than to deal with these other, arguably more serious, offences.
As far as the administration burden is concerned, with property being taken and given to the police versus the time that the police would have to spend going to collect the property from the premises, with the greatest respect, I do not think that the Minister realises the administrative burden that goes with police seizing property and the problems associated with it. I say that it would be a disproportionate burden on the police were immigration officers able to seize such property. But, at this stage, I beg leave to withdraw my amendment.
Amendment 184 withdrawn.
Clause 20 agreed.
Clauses 21 to 24 agreed.
Clause 25: Search for nationality documents by detainee custody officers etc
Moved by Lord Paddick
185: Clause 25, page 31, line 30, leave out “, or intends to make,”
Amendment 185 relates to the power of detainee custody officers, prison officers and prison custody officers to search for nationality documents. The powers set out in Clause 25(6) can be exercised not only when the Secretary of State has made a deportation order in relation to the individual but, as stated in Clause 25(2)(b), when the Secretary of State “intends to make” a deportation order. The briefing from the Immigration Law Practitioners’ Association expresses serious concerns about the new powers to conduct searches for nationality documents, including strip searches, in the light of the concerns expressed about the treatment of vulnerable persons in immigration detention made by the all-party parliamentary groups on refugees and on migrants. That review was conducted by Stephen Shaw and others.
On the particular issue of the amendment, if the Government mean to extend the power to include cases where the Secretary of State has fulfilled the procedural requirement to give formal notice of her intention to make a deportation order, this should be in the Bill, rather than the current wording, which is simply,
“intends to make, a deportation order”.
Amendments 186, 187, 188 and 189 relate to the circumstance where a nationality document has been seized but the person is not removed from the United Kingdom. Clause 25(13) states that the Secretary of State “may” arrange for the document to be returned, but surely she is under an obligation to return the document, so amendment 185 seeks to replace “may” with “shall”. Amendment 192 covers the same point in relation to documents seized by a detainee custody officer or a prison officer.
Amendment 187 refers to Clause 25(13)(b), which goes on to say that a document can be disposed of and not returned if the Secretary of State thinks that it would not be appropriate to do so. Can the Minister explain in what circumstances a search for a nationality document might produce a document that is not required as part of the process of deporting an individual but should nonetheless be disposed of rather than returned? For example, the Immigration Law Practitioners’ Association reminds us that passports, one of the “nationality documents” listed in the Bill, remain the property of the issuing authority. As such, the Secretary of State has no right to dispose of these documents as she thinks fit.
Amendment 193 covers the same point in relation to a document seized by a detainee custody officer or prison officer in Clause 26(7)(b) and Amendment 212 covers a similar point in Clause 29(10) and (11) in relation to a document supplied to the Secretary of State by a public body. The amendment suggests that the document is returned to the person who supplied it rather than being disposed of.
Amendment 188 relates to Clause 25(14)(b), which states that if it is it necessary to return a document and it was not found on someone, it should be returned to,
“the location in which it was found”.
The amendment suggests as an alternative that the document should be returned to the person who appears to be entitled to it. It is difficult to envisage that a document seized as potential evidence of an immigration offence would not contain any information about the person to whom it belongs. As it stands, Clause 25(14)(b) could allow for a document that subsequently turns out to be stolen to be replaced where it was found. The Immigration Law Practitioners’ Association has pointed out a flaw in this amendment in cases where someone is seeking asylum and the returning of a nationality document to the person’s country of origin may place them in danger, but we can address this defect in our amendment at Report if necessary. Amendment 190 covers the same point for a document seized by a detainee custody officer in Clause 26(5)(b).
Amendment 189 was originally intended to challenge the inclusion of “citizenship” and documents that show where the person has come from or is going to in the definition of nationality documents, but we now accept that Section 44(5) of the UK Borders Act 2007 gives a similarly broad list of documents. However, the Immigration Law Practitioners’ Association points out that in the UK Borders Act a,
“‘nationality document’ means a document showing … the individual’s identity, nationality or citizenship”,
whereas this provision defines a nationality document as a document which,
“might … establish a person’s identity, nationality or citizenship”— a significant widening of the power.
The document that indicates where a person has travelled from could include a guidebook, personal diary or hotel receipt. Will the Minister explain how a personal diary or a travel guide could be defined as a nationality document? If the Government want to be able to search and retain any document found, they should say so on the face of the Bill. Amendment 213 is on the same point in relation to nationality documents supplied by the police, local authorities and other public bodies at Clause 29(11) and (14).
Amendment 191 relates to Clause 26(6), which states:
“The Secretary of State may retain a relevant nationality document”,
discovered during a search of a person detained,
“while the Secretary of State suspects that … a person to whom the document relates may be liable to removal from the United Kingdom … and … retention of the document may facilitate the removal”.
Surely there must be a reasonable level of suspicion before the document can be retained rather than simply a gut instinct or a feeling of suspicion. I beg to move.
My Lords, during the excellent remarks of the noble Lord, Lord Paddick, in introducing his amendments and talking about these clauses, he referred to Stephen Shaw’s report and I want to ask the Minister some questions about that. He will know that the All-Party Parliamentary Group on Migration produced a pretty damning report on immigration detention, which led to the former Prisons and Probation Ombudsman, Stephen Shaw, being asked to investigate the treatment of vulnerable persons in detention. His report was published on
Has the Minister had a chance to read the report in detail? It criticises the conduct of searches in immigration detention centres and it gives cause for further scrutiny of these provisions. The Minister himself, in his remarks on the previous set of amendments, said that things such as strip-searching would not be permitted, but I was concerned to read a number of accounts in Stephen
Shaw’s report that involved male detention staff in searches of women, although not with the removal of clothes, and of women’s rooms in Yarl’s Wood. I am particularly interested in the situation there, as, thanks to the Minister, my noble friend Lord Hylton and I have been able to arrange a visit to Yarl’s Wood on Wednesday morning. I am glad that we will have the opportunity to put some of these questions directly to the staff who run that facility.
Mr Shaw says in his remarks:
“It is of the greatest importance that the proportion of female staff at Yarl’s Wood is increased … In the meantime, Serco should only conduct searches of women and of women’s rooms in the presence of men in the most extreme and pressing circumstances, and there should be monitoring and reporting (to Home Office Detention Operations) of these cases”.
In recommendation 35 of the report, he states:
“I recommend that the service provider at Yarl’s Wood should only conduct searches of women and of women’s rooms in the presence of men in the most extreme and pressing circumstances, and that there should be monitoring and reporting of these cases”.
During that review, Stephen Shaw identified evidence that the Home Office policy of not searching detainees, especially women, in the view of other people, is not always followed. I was struck by some examples that he gave. He said that:
“As far as the practices at Heathrow, Lunar house and Eaton House are concerned, the evidence of this review is that the Home Office’s policy that detainees (especially women) should not be searched in view of other people is not always followed”.
For instance, talking about Heathrow Terminal 3, Mr Shaw says, at paragraph 3.175:
“A female detainee was searched in front of several people”
At paragraph 3.227, talking about Lunar House, he says:
“Detainees were searched in an area where they could be seen by others in the main holding room”.
At Eaton House, at paragraph 3.240, he says:
“A female detainee was searched in the holding room by the Tascor escort who had arrived to take her to Colnbrook. This was in front of a male detainee and a male member of staff”.
Clearly, given the vulnerable position of detainees, particularly women, who are held as immigration detainees, and the lack of compliance by detention custody staff with existing policies on searching detainees, it would be highly inappropriate to extend those powers of search to include searches for the purpose of identifying nationality documents, particularly where they are so broadly defined in the way that the noble Lord, Lord Paddick, has already described to the Committee. When he comes to reply, I would be grateful if the Minister could tell us how the Government intend to respond to Stephen Shaw’s observations and recommendations.
My Lords, having visited Yarl’s Wood several times in the past, I have noted the deep anxiety of those resident there. Anything like this will be particularly disturbing to them, so that should be kept in mind.
We must always draw attention to concerns about the treatment of these vulnerable individuals, but we must also commend the Government when they take steps to protect such individuals and treat them with respect. I take this opportunity to pay tribute once again to the last coalition Government, which took children and families out of these settings. Many of us were very concerned at the large numbers of families who were detained at Yarl’s Wood, often for many months on end. I remember speaking to a 16 year-old girl who was there with her mother and her six or seven year-old sister for nine months. It is very much to the coalition Government’s credit that they decided to change the system.
I am obliged to noble Lords. I shall begin by addressing the points raised by the noble Lord, Lord Alton, and the noble Earl, Lord Listowel, in the context of the report from Stephen Shaw. Of course the background to this was the detailed Report of the Inquiry into the Use of Immigration Detention in the United Kingdom by the All-Party Parliamentary Group on Refugees and the All-Party Parliamentary Group on Migration, of which the noble Baroness, Lady Hamwee, was a member. That led to the appointment of Stephen Shaw, and as the noble Lord, Lord Alton, has observed, he recently reported on this matter. My noble friend Lord Bates, upon receipt of that report, made a Statement to the House in which he pointed out that the Government welcomed the important contribution that Stephen Shaw had made to the debate about effective detention and accepted the broad thrust of his recommendations. That will be the subject of a further response in due course, and certainly I hope before the Report stage. I hope that the noble Lord, Lord Alton, will allow me to defer any detailed comments on the points he raised until that further response is made. But what I add is that we welcome observations that he may have to make following his visit to Yarl’s Wood on Wednesday. His comments will be received in the appropriate spirit because this is a demanding area and one in which the Government are willing to seek to respond to the broad thrust of the recommendations that Stephen Shaw has made.
I turn to Amendment 185, moved by the noble Lord, Lord Paddick, but before doing so I will make this observation. He spoke about strip searches. I take issue with that term. There are full searches but they are not strip searches. It may be that he wishes to come back on that, but I take issue with the term “strip searches”; they are full searches.
It is set down in detail, but in general it means that someone is not stripped. It means that articles of clothing are removed and returned in turn, but without them being stripped.
I return to Amendment 185, which would limit the Secretary of State’s ability to direct officers to search for nationality documents to those in respect of whom she has made a deportation order under Section 5(1) of the Immigration Act 1971, preventing its use for those whom she intends to deport. It may help if I explain that the Secretary of State, in accordance with regulations made under Section 105 of the Nationality, Immigration and Asylum Act 2002, issues a written notice to those foreign national offenders who are liable to deportation under Section 5(1) of the Immigration Act 1971 stating that she intends to seek a deportation order against them. Such persons may be detained by virtue of paragraph 2(2) of Schedule 3 to the Immigration Act 1971. Therefore, the reference to “intends to” is simply a way to ensure that such persons are within the ambit of the new powers while in detention. Being able to direct a search for nationality documents once a person has received such a notice but before a deportation order is made reduces the risk of documents being destroyed when the person knows that deportation is a realistic prospect. That is the purpose of the provision in its present form and why we resist the proposed amendment.
Amendments 186 to 188, 190, 192 and 193 seek to limit the Secretary of State’s disposal options on nationality documents which are not used to remove a person, by ensuring that they must be returned to the person who was previously in possession of them or who appears to be entitled to them. On that last point the noble Lord, Lord Paddick, is of course right to say that the country which issues a passport is the proprietor of that passport, while the person to whom it is issued is the user. It is therefore that country which is entitled to claim ownership, as it were, of the passport document. That touches upon the point he mentioned about the potential risk of returning a document to an issuing authority creating a danger for a person in particular circumstances. That is a point I will take away and consider because it had not immediately occurred to me in this context.
The reason why the Secretary of State should be given the wider power indicated in the present clauses is because there may be circumstances in which she would wish to remove from circulation forged or counterfeit documents. The idea that, having identified a passport as forged or counterfeit, she should return it to the person who had been using it seems a little unusual. It is in these circumstances that the wider power is sought.
Amendment 189 reduces the definition of “nationality document” to those which might establish a person’s identity, nationality or citizenship. The noble Lord, Lord Paddick, was quite right to notice that this provision does in fact follow on from Sections 44 and 45 of the United Kingdom Borders Act 2007, which contain powers for immigration officers and constables to search for nationality documents, but with a wider definition than the one suggested by Amendment 189. The reason for that is that there may be circumstances in which it is important to identify the place from which a person came, or indeed the place to which they were intending to go, in the context of whether or not they should be subject to deportation. The noble Lord also asked how or why a hotel receipt, travel guide and other such documents might be considered relevant. In that context they would be considered relevant because they might disclose the first place of safety that a person had arrived at within the European Union, for example, where the provisions of the Dublin agreement apply. It is therefore entirely appropriate that one should be able to search for such documents. They could provide a trail in circumstances where a person may have been seeking to make repeated asylum applications in a whole series of countries once they had arrived in a relatively safe environment.
Finally, Amendment 191 seeks to ensure that the Secretary of State may retain a relevant nationality document only if she is reasonable in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom and that the document may facilitate that removal. All Ministers must comply with public law principles when exercising public functions. This includes the requirement to act reasonably. If those delegated to use such powers do not do so, that may be challenged in the courts by means of judicial review. It is therefore implicit that the Secretary of State will act reasonably in exercising the power to retain nationality documents. I should also emphasise that the wording used in Clause 26(6) is consistent with that used in Section 17 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 regarding the retention of documents that come into the possession of the Secretary of State or an immigration officer in the course of exercising an immigration function. There is consistency in the proposed legislation.
In light of these points, I hope that the noble Lord will agree to withdraw his amendment.
My Lords, I think that some Members of your Lordships’ House are still struggling to work out how a search which is complete in bits sequentially is different from a strip search. However, what I want to say at this point is that I am not the only Member of your Lordships’ House, or indeed the only Member present today, to take part in the inquiry by the all-party groups to which the Minister referred. The noble Baroness, Lady Lister, was also an energetic member of the group.
The noble Baroness is of course quite right and I apologise to the noble Baroness, Lady Lister, for omitting her name from the reference. Of course it is acknowledged that the report was the precursor to Stephen Shaw’s helpful and incisive report on this matter. I am obliged for that.
My Lords, I am very grateful to the Minister for his explanation. As noble Lords will be aware, many amendments at Committee stage are probing amendments, so the explanations given by the Minister on this occasion have been very helpful.
On Amendment 185, I mentioned that the Secretary of State has to serve a notice on people—a formal notice of the intention to make a deportation order. The Minister pointed to that as being the meaning in the Bill. I asked the question: if that is the case why is that wording not on the face of the Bill rather than the rather vague wording that is currently there? Maybe the Minister can reflect on that between now and the next stage.
As far as the definition of nationality documents is concerned, I accept that under the Dublin agreement, as long as we are a member of the European Union, it is important to establish the first place of safety in terms of where the person should apply for asylum. I am reassured that Secretaries of State must at all times act reasonably. On that basis, I beg leave to withdraw the amendment.
Amendment 185 withdrawn.
Amendments 186 to 189 not moved.
Clause 25 agreed.
Clause 26: Seizure of nationality documents by detainee custody officers etc
Amendments 190 to 193 not moved.
Clause 26 agreed.
Clauses 27 and 28 agreed.
Schedule 5: Amendments to search warrant provisions
Before I call the noble Lord to move his Amendment 194, I should point out that if it were agreed it would not be possible to call government Amendment 195 in the name of the noble Lord, Lord Bates, as it would be pre-empted.
Moved by Lord Paddick
194: Schedule 5, page 94, line 13, leave out from “application” to end of line 17
My Lords, I move the amendment in my name and that of my noble friend Lady Hamwee. We also have Amendment 201 in this group.
Amendment 194 relates to Schedule 5 and amendments to the search warrant provisions in the Immigration Act 1971. We have already debated all premises warrants under Amendments 171, 172 and 173 in relation to the seizure of vehicles driven by someone illegally in this country. These provisions relate to search warrants issued to search for personnel records and nationality documents, and again allow any premises owned or occupied by the person specified in the warrant without having to specify the premises. The only thing I would say to that is that the explanation given under those previous amendments appeared to be simply to bring the Immigration Act into line with the Police and Criminal Evidence Act. Will the Minister say whether there are other specific reasons why all premises warrants would be valuable in the circumstances?
Amendment 201 is to probe the extension from one month to three of the time during which a search warrant issued under the Immigration Act 1971 can be executed. I accept that these provisions bring Immigration Act search warrants into line with those issued, predominantly to the police, under the Police and Criminal Evidence Act 1984, as amended by Section 15 of the Serious Organised Crime and Police Act 2005. However, is this necessary or safe in immigration cases?
The Immigration Law Practitioners’ Association points to evidence in the March 2014 report of the Independent Chief Inspector of Borders and Immigration in relation to the use of the power to enter business premises without a warrant by immigration officers. It found that in 59% of the cases examined, the required justification had not been made out. I appreciate that this provision is to extend powers given by warrant but the chief inspector’s report indicates the need for increased, not less scrutiny by the courts of the powers used by immigration officers. I beg to move.
My Lords, I am obliged to the noble Lord. As he indicated, Amendment 194 would remove the ability for immigration officers to seek an all premises warrant where they have a power to enter and search premises for material which is likely to be relevant evidence of an immigration offence under the 1971 Act. As the noble Lord anticipated, one purpose of this is to bring the provisions on such warrants into line with those for police warrants under PACE.
In addition, Amendment 201 is intended to do the same thing, but I should perhaps explain that when the immigration warrants were originally provided for, as running for one month, that was in parallel with the time that a police warrant would run under PACE. Subsequently, the warrant under the Police and Criminal Evidence Act was extended to a three-month period, so they fell out of sequence. The difficulty is that, from time to time, there are joint immigration officer and police operations which involve warrants being granted, and it is not convenient that the immigration warrant should be a period of one month while the police warrant is for a period of three months. The purpose of Amendment 201 in particular is simply to bring the time limit back into line with that which applies for police warrants.
Coming back to Amendment 194 and the use of all premises warrants, it is considered appropriate that an all premises warrant should be available to immigration officers, not only because that is consistent with the form of warrant available to police officers pursuing their own powers but because there are many circumstances in which an all premises warrant will be required for effective recovery of material pertaining to either illegal working or potential offences in respect of landlords and illegal renting. For example, where you have someone who has a number of restaurants employing persons who may be suspected of being illegal immigrants, you may have a warrant in respect of particular premises and then discover that all the records are actually kept elsewhere—in an office, a lock-up, or something of that kind. Therefore, it is appropriate that all the premises that are subject to the control of a particular employer should be available under the warrant, otherwise we would have a very long, drawn-out, step-by-step process of knocking down one domino, going from one warrant to the next one, and so on. It is in these circumstances that it is considered appropriate that an all premises warrant should be allowed in the case of immigration officers. I hope that that addresses the concerns or reservations expressed by reference to Amendments 194 and 201. In a sense, they bring immigration warrants into line with police warrants, but they were in line with police warrants before the amendment to the Police and Criminal Evidence Act. In addition, there are substantive reasons why it is practical and effective for immigration officers to have an all premises warrant facility available to them.
Government Amendments 195 to 200 and 202 to 209 may look rather complex, but have at their core a very simple proposition; that is, in Scotland it is not lawfully possible to secure an all premises warrant and a multiple entry warrant. Therefore, it is necessary to ensure that immigration officers operating in Scotland do so within the bounds of the Scottish criminal justice system.
I see the need for the amendments, but will the noble and learned Lord explain further how we have had to come to this stage in the Bill—I assume that it was drafted in the Home Office, checked and rechecked, and then went all through the Commons—and now we find that we have to table an amendment because these powers are not available in Scotland? I am surprised that we had to come to this stage to realise that point.
It may be that the Scots only recently had a look at it. I am not in a position to elaborate, but I hope that the noble Lord will accept that as a potential explanation.
I shall go on to deal with government Amendment 214B, which is not concerned with warrants per se, but to clarify that the person who can undertake the role of custody review officer under Section 24A of the Criminal Law (Consolidation) (Scotland) Act 1995 includes a police inspector and is not limited to a person of equivalent rank. In Scotland, immigration officers currently have a power to detain pending arrest, and charge for immigration and nationality offences under Section 24 of the 1995 Act, which is similar to arresting a person pending charge in England, Wales and Northern Ireland. Under Section 24A of that Act a “custody review officer” may authorise an extension of the period for which a person can be held in detention under Section 24. This role has always been undertaken by a police inspector and the amendment is simply to ensure that there is no possible ambiguity in the provision that provides for this operational practice. Amendments 214C and 214D are minor and technical and simply remove redundant wording from the Bill.
I hope that these explanations will satisfy noble Lords and that they will feel able not to press their amendments, and I shall move the government amendments.
My Lords, I am grateful to the Minister for the explanations that he has given. I still have concerns relating to the Chief Inspector of Borders and Immigration’s report on immigration officers’ use of powers to enter premises without a warrant. In 59% of cases examined the required justification had not been made out. Giving immigration officers similar powers to those of police officers to enter any premises owned or occupied by the person named in the warrant and to do it over an extended period where it is not a joint operation with the police still causes me some concern.
I am not sure whether there is similar malpractice, so far as police officers are concerned, in the execution of PACE warrants, but the Chief Inspector of Borders and Immigration’s report seems to suggest that the exercise of powers by immigration officers is not perhaps as thorough as it is by police officers. My concerns remain, but at this stage I beg leave to withdraw the amendment.
Amendment 194 withdrawn.
Amendments 195 to 200
Moved by Lord Keen of Elie
195: Schedule 5, page 94, line 14, after “(b)” insert “subject to subsection (2A),”
196: Schedule 5, page 94, line 29, after “(1C)” insert “Subject to subsection (2A),”
197: Schedule 5, page 94, line 35, at end insert—
“( ) After subsection (2) insert—
“(2A) A justice of the peace in Scotland may not issue—
(a) an all premises warrant under this section, or
(b) a warrant under this section authorising multiple entries.””
198: Schedule 5, page 95, line 7, after “(b)” insert “subject to subsection (3C),”
199: Schedule 5, page 95, leave out lines 21 to 26 and insert—
“( ) After subsection (3) insert—
“(3A) Subject to subsection (3C), the warrant may authorise entry to and search of premises on more than one occasion if, on the application, the justice of the peace is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which the justice issues the warrant.
(3B) If it authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.
(3C) A justice of the peace in Scotland may not issue—
(a) an all premises warrant under this section, or
(b) a warrant under this section authorising multiple entries.””
200: Schedule 5, page 96, line 35, leave out “28FB(1C)” and insert “28FB(3A)”
Amendments 195 to 200 agreed.
Amendment 201 not moved.
Amendments 202 to 209
Moved by Lord Keen of Elie
202: Schedule 5, page 97, line 36, leave out “28FB(1C)” and insert “28FB(3A)”
203: Schedule 5, page 98, line 4, after “(b)” insert “subject to sub-paragraph (6BA),”
204: Schedule 5, page 98, line 17, after “(6AC)” insert “Subject to sub-paragraph (6BA),”
205: Schedule 5, page 98, line 24, at end insert—
“( ) After sub-paragraph (6B) insert—
“(6BA) A justice of the peace in Scotland may not issue—
(a) an all premises warrant under this paragraph, or
(b) a warrant under this paragraph authorising multiple entries.””
206: Schedule 5, page 98, line 26, leave out “(6AC)” and insert “(6BA)”
207: Schedule 5, page 98, line 38, after “(b)” insert “subject to subsection (3A),”
208: Schedule 5, page 99, line 6, after “(2C)” insert “Subject to subsection (3A),”
209: Schedule 5, page 99, line 12, at end insert—
“( ) After subsection (3) insert—
“(3A) A justice of the peace in Scotland may not issue—
(a) an all premises warrant under this section, or
(b) a warrant under this section authorising multiple entries.””
Amendments 202 to 209 agreed.
Schedule 5, as amended, agreed.
Moved by Lord Paddick
210: Clause 29, page 36, line 2, after second “State” insert “reasonably”
My Lords, in moving Amendment 210, in my name and that of my noble friend Lady Hamwee, I shall speak to Amendments 211 to 213 and Amendment 215.
Amendment 210 suggests the addition of “reasonably” in the power of the Home Secretary to direct public agencies to supply documents, so that she must “reasonably suspect”, rather than simply “suspect”, that someone may be liable to deportation under new Section 20A(2). Amendment 211 suggests a similar change to the power of the Secretary of State to retain such a document. Amendment 212 requires the Secretary of State to return a nationality document that is no longer required to the person who supplied it, as previously debated on Amendment 188.
Amendment 213 again queries extending the definition of “nationality document” from “a document showing” the individual’s “identity, nationality or citizenship”, to one that “might establish” the individual’s “identity, nationality or citizenship”, as previously debated on Amendment 189. I do not think that the Minister addressed in that debate the broadening of the definition from a document “showing” the individual’s identity to one that “might establish” their identity. That is a considerable broadening of the definition.
Amendment 215 would insert a new clause after Clause 30 relating to complaints and the investigation of serious concerns relating to the conduct of immigration officers. It suggests that a commission be established to,
“make recommendations about the establishment of an independent oversight body”,
for immigration officers and other authorised officers, in so far as they exercise powers available to immigration officers. My understanding is that the Independent Police Complaints Commission currently investigates complaints against immigration officers, but only relating to powers similar to those exercised by the police. There is not one overall coherent complaints investigation or recording system. Would the Minister confirm this? Even if the IPCC has a role, we believe that such arrangements may be inadequate and should at least be reviewed to ensure that they are effective.
The Independent Police Complaints Commission is fighting an uphill struggle to win the trust and confidence of the public in general, and the black and minority ethnic communities in particular. Those most likely to come into contact with immigration officers are those seeking asylum and others in a very vulnerable position. The likelihood that such people will have a good understanding overall of their rights and the standard of conduct expected of immigration officers and other authorised officers is far less than among those born in this country or who have lived here for some time. Indeed, the way they may have been treated by officials in their own country may well be far below the standard expected of immigration officers and other authorised officers in the UK.
In all the circumstances, it seems that there is at least a question that needs to be examined as to whether the existing arrangements by which long-standing residents of the UK—well-versed in their rights and the conduct expected of officials—can have their concerns about the police and immigration officers investigated are adequate for asylum seekers and those newly arrived in the United Kingdom. I beg to move.
My Lords, this group of amendments concerns the supply of information to the Secretary of State and the establishment of a commission for standards for immigration officers. I was somewhat surprised that without Amendment 212 or something similar—it may need refining—it would be left to the Secretary of State to dispose of nationality documents as they think appropriate, without any further clarifications. It would be useful if the noble and learned Lord, Lord Keen, would confirm that there is no question that these documents will not be returned to the person when they are no longer needed by the Secretary of State or their officials. I understand that we would not want to return the documents to someone who had no right to have them, but if they have been obtained lawfully they should go back to them.
Amendment 215 requires the Secretary of State to establish a commission to make recommendations for an independent oversight board to set standards for immigration officers. Given the sort of powers that immigration officers exercise as public officials, it is right that we should have in place a proper process to look at complaints about their conduct and standards. It would be helpful if the noble and learned Lord were to set out what happens at present. Is this safeguard in place with regard to certain things but not to others, as the noble Lord, Lord Paddick, indicated? Does the noble and learned Lord think that the present system is adequate in all respects?
Amendments 210 and 211 are essentially the same as those previously discussed in relation to Amendment 191 in seeking to ensure that the Secretary of State may direct a person to supply a relevant nationality document only—and may retain that document only—if she acts reasonably in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom, and that the document may facilitate that removal.
Amendment 213 is the same as Amendment 189, put forward to Clause 25, in seeking to limit the definition of “nationality document”. The noble Lord, Lord Paddick, observed that I had not addressed the distinction between the term “showing” and the term “might establish”. It respectfully appears to me that it is the distinction between that which is explicit on the face of a document and that which may be inferred from its terms. The terms of a document may not on their face show a particular position but an analysis of the terms of that document would lead to an implication about the source of the document, the person using it or the background of that person. So I suggest that it is the distinction between a document being explicit on its face, and giving rise to what might be termed a circumstantial evidential route to a determination with regard to a person’s nationality or route of travel.
Amendment 212 differs slightly from those previous amendments to Clauses 25 and 26 on the Secretary of State’s power to dispose of documents which she no longer wishes to retain in that it requires the document to be returned to the person who supplied it. However, to answer the question raised by the noble Lord, Lord Kennedy, we again face a difficulty when the Secretary of State is provided with documents which are clearly forged or counterfeit. The desire is to ensure that these should not remain in circulation and therefore be returned to someone who would put them back into circulation or use them again. I hope that that satisfies the noble Lord. It should be acknowledged that some of the bodies supplying documents will not be in a position to establish whether they are forged or fraudulently obtained—but, generally speaking, Immigration Enforcement personnel are able to determine that from the analysis of documents.
As we have discussed, Clause 29 contains powers that enable the Secretary of State to require public authorities, subject to certain conditions, to supply nationality documents to the Home Office for immigration purposes. Schedule 6 lists those public authorities to which the new duty applies. Government Amendment 214A is quite straightforward in terms of its effect in that it adds education bodies to that list: these are schools and further and higher education providers across the United Kingdom. This power will be exercisable only where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and that the document may facilitate the removal.
I wish to be absolutely clear that this is not a power to require education bodies or, indeed, any of those listed, to collect data or information on behalf of the Secretary of State, or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a nationality document is already lawfully in the possession of the relevant body—that is to say, that they hold the document for the purposes of their own functions.
On the new clause proposed in Amendment 215, I fully understand the value of having standards for the actions of immigration officers, the handling of complaints against them and the investigation of serious concerns about their conduct. It is vital that the public are able to make complaints where they feel they have been mistreated by immigration officers, and, of course, it is right that serious incidents are subject to independent scrutiny. Indeed, it is precisely because of our commitment to protecting the public that we have ensured that adequate oversight mechanisms are in place for all areas of Great Britain and Northern Ireland.
In England and Wales, the Independent Police Complaints Commission provides oversight of serious complaints, matters of conduct and incidents involving immigration officers exercising enforcement powers. The Police Ombudsman for Northern Ireland’s remit mirrors that of the IPCC, enabling oversight of serious incidents, complaints and conduct matters in Northern Ireland where immigration enforcement powers are exercised.
In Scotland, the Crown Office and Procurator Fiscal Service has the remit to investigate deaths and allegations of criminality in respect of immigration matters. In addition, all complaints about immigration officers who are exercising enforcement powers in Scotland may be investigated by the Police Investigations and Review Commissioner.
Furthermore, the United Kingdom’s border and immigration functions as a whole are subject to the independent scrutiny of the Chief Inspector of Borders and Immigration, who was cited a little earlier by the noble Lord, Lord Paddick. Detention staff are also subject to a number of oversight and monitoring bodies. Her Majesty’s Inspector of Prisons has a statutory responsibility to report on the conditions and treatment in not just prisons but all places of immigration detention in the United Kingdom; the Parliamentary and Health Ombudsman can conduct unannounced inspections; and detainees may ask for complaints to be reviewed by the independent Prisons and Probation Ombudsman.
The role of the Independent Chief Inspector of Borders and Immigration was created by Section 48 of the UK Borders Act 2007. It has been in place for a number of years and is believed to work effectively and efficiently. Guidance on how complaints are managed and resolved by UK Visas and Immigration, Immigration Enforcement and Border Force is publicly available on the Government’s website. This includes information about the complaints management structure, types of complaints handled, dealing with complaints, service complaints, minor misconduct complaints, serious misconduct complaints, special circumstances, complaints from children and complaints for the purposes of financial redress. Complaints may be raised at a local level to a senior officer within the relevant immigration compliance and engagement team which conducted the search. Complaints about serious misconduct are allocated to, and investigated by, the immigration Professional Standards Unit.
So there is a wide-ranging series of bodies available to ensure that complaints from the public are properly handled and effectively disposed of. I again point to the observations made a little earlier by the noble Lord, Lord Paddick, about the use, or alleged misuse, of warrants in circumstances where they have been employed by immigration officers. That points up the fact that there is a very effective monitoring system in place. In these circumstances, I urge noble Lords to accept government Amendments 214A and 214B and invite the noble Lord, Lord Paddick, to withdraw his amendment.
The noble and learned Lord has gone through the various bodies to which we can complain. However, there are a lot of bodies to which one can complain about all sorts of different things. Perhaps his officials should reflect that there is a case for bringing all these things together because having all these bodies may not be the best way to run things. As regards the nationality documents, I entirely accept the point about fraudulent documents but if a document is genuine I assume that it would be returned to the relevant person.
On the last point, the Secretary of State will act reasonably, and is lawfully obliged to act reasonably, so there cannot be any real difficulty about that. On the noble Lord’s first point, our complaints procedure may be so comprehensive that it is difficult for him to get his arms round it. However, I would be content to write to outline that procedure in more detail if he felt that would assist.
My Lords, I am very grateful to the Minister for the explanations that he has given. As he said, many of them were similar to points that we had already debated. I am very grateful for his explanation about the broadening of the definition, which he did not cover on the previous amendments. I shall read with interest, and very carefully, what he has said on that issue.
On Amendment 215, I echo what the noble Lord has just said about the many and different avenues of complaint. How can somebody who has a genuine grievance against the Immigration Service possibly know which body to turn to among all that complexity? The Minister did not address the concerns that I expressed on behalf of many communities about their lack of trust and confidence in the Independent Police Complaints Commission, and the concern that those who are likely to come into contact with the Immigration Service are likely to be more vulnerable and less aware of their rights than those who do make complaints to the Independent Police Complaints Commission.
The Minister made reference to the Independent Chief Inspector of Borders and Immigration. I have to confess to not knowing exactly what the chief inspector’s remit is, but if it is similar to that of Her Majesty’s Chief Inspector of Constabulary, it is purely a monitoring function—an investigation and review function—rather than a complaint-examining function. Indeed, if any complaint were made to the Chief Inspector of Borders and Immigration about the conduct of the immigration office, I would expect him to refer it to—
I should have added that Independent Police Complaints Commission’s remit was extended to investigating complaints and serious conduct matters relating to the exercise of immigration enforcement powers by Section 41 of the Police and Justice Act 2006 and the UK Border Agency (Complaints and Misconduct) Regulations 2010. I had omitted to mention that.
I am very grateful to the Minister for that.
As I was saying, I expect that we would find in practice that complaints made to the Independent Chief Inspector of Borders and Immigration would just be passed on to the many and various organisations and bodies that the Minister highlighted.
I am therefore still unconvinced that there is no need to review whether the current procedures for making complaints against immigration officers is user-friendly to people who are going to find it very difficult to navigate all these different systems. But in the meantime, I beg leave to withdraw my amendment.
Amendment 210 withdrawn.
Amendments 211 to 213 not moved.
Clause 29 agreed.
Amendments 214 and 214A
Moved by Lord Bates
214: Schedule 6, page 100, line 9, leave out “Licensing” and insert “and Labour Abuse”
214A: Schedule 6, page 100, line 23, at end insert—
The proprietor of a school or 16 to 19 Academy within the meaning of the Education Act 1996 (see sections 4 and 579(1) of that Act).
The governing body of an institution within the further education sector within the meaning of the Further and Higher Education Act 1992 (see sections 90 and 91 of that Act).
The proprietor or governing body of a school within the meaning of the Education (Scotland) Act 1980 (see section 135(1) of that Act).
The proprietor or governing body of a post-16 education body within the meaning of the Further and Higher Education (Scotland) Act 2005 (see section 35 of that Act).
The proprietor of a school within the meaning of the Education and Libraries (Northern Ireland) Order 1986 (SI 1986/594 (NI 3)) (see Article 2(2) of that Order).
The governing body of an institution of further education within the meaning of the Further Education (Northern Ireland) Order 1997 (SI 1997/1772 (NI 15)) (see Article 2(2) of that Order).
The governing body of a higher education institution as defined by Article 30(3) of the Education and Libraries (Northern Ireland) Order 1993 (SI 1993/2810 (NI 12)).”
Amendments 214 and 214A agreed.
Schedule 6, as amended, agreed.
Clause 30: Detention etc. by immigration officers in Scotland
Amendments 214B to 214D
Moved by Lord Bates
214B: Clause 30, page 37, line 27, at end insert—
“( ) The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows.
( ) In section 24A (extension of period of detention under section 24) for subsection (7) insert—
“(7) In this section and section 24B, “custody review officer” means—
(a) an officer who—
(i) is of a rank at least equivalent to that of police inspector, and
(ii) has not been involved in the investigation in connection with which the person is detained, or
(b) in relation to the detention of a person under section 24 by an immigration officer, a constable—
(i) of the rank of inspector or above, and
(ii) who has not been involved in the investigation in connection with which the person is detained.”
( ) In section 26A(2) (power of arrest of authorised immigration officers) omit “or immigration enforcement offence”.”
214C: Clause 30, page 37, line 28, leave out “of the Criminal Law (Consolidation) (Scotland) Act 1995”
214D: Clause 30, page 37, line 37, leave out subsection (3) and insert—
“( ) Omit the definition of “immigration enforcement offence”.”
Amendments 214B to 214D agreed.
Clause 30, as amended, agreed.
Moved by Lord Bates
214E: After Clause 30, insert the following new Clause—
“Powers to take fingerprints etc. from dependants
(1) Section 141 of the Immigration and Asylum Act 1999 (powers to take fingerprints from certain persons and their dependants) is amended as follows.
(2) In subsection (7) for paragraph (f) substitute—
“(f) any person (“F”) who is—
(i) a member of the family of a person within any of paragraphs (a), (b) or (ca) to (e), or
(ii) a dependant of a person within paragraph (c)(i).”
(3) In subsection (8)(f) after “person” insert “of whose family he is a member or”.
(4) In subsection (9)(f) after “person” insert “of whose family he is a member or”.
(5) After subsection (13) insert—
“(13A) For the purposes of subsection (7)(f)(i), a person is a member of the family of another person (“P”) if—
(a) the person is—
(i) P’s partner,
(ii) P’s child, or a child living in the same household as P in circumstances where P has care of the child,
(iii) in a case where P is a child, P’s parent, or
(iv) an adult dependant relative of P, and
(b) the person does not have a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom.
(13B) In subsection (13A) “child” means a person who is under the age of 18.”
(6) In subsection (14) for “(7)(f)” substitute “(7)(f)(ii)”.”
(7) Section 142 of the Immigration and Asylum Act 1999 (attendance for fingerprinting) is amended as follows.
(8) In subsection (2) for “a dependant of” substitute “a member of the family of, or a dependant of,”.
(9) In subsection (2A) for “a dependant of” substitute “a member of the family of”.
(10) Until the commencement of the repeal of section 143 of the Immigration and Asylum Act 1999 (destruction of fingerprints) by paragraph 17(2) of Schedule 9 to the Immigration Act 2014, subsection (9) of that section has effect as if after “the person” there were inserted “of whose family he is a member or”.
(11) In section 144A(2) (application of regulations about use and retention of fingerprints etc to dependants) after “the person” insert “of whose family F is a member or”.”
Amendment 214E agreed.
Amendment 215 not moved.
Clause 31 agreed.
Clause 32: Immigration bail
Moved by Baroness Hamwee
215A: Clause 32, page 38, line 13, leave out “bail” and insert “temporary admission”
With this amendment we come to another big issue, starting with what may appear to be a triviality, although I do not regard it as such. The clause, of course, is about bail. The law as it currently stands is that if a person cannot lawfully be detained under immigration powers—for instance, because there is no prospect of removing her or him within a reasonable period, or at all, or because it is contrary to policy to detain because the person is a victim of torture or trafficking or is seriously mentally ill—that person must be released from immigration detention and cannot be subject to bail because the powers to grant bail and to impose bail conditions can apply only if there is a power lawfully to detain. Bail is not liberty, either conceptually or practically, because of conditions which may be applied.
The Master of the Rolls, Lord Dyson—I appreciate he may not be the flavour of the month in the Government’s eyes, following evidence to the Justice Committee—recently referred to the long-established common law position that,
“The power to grant bail presupposes the existence of (and the ability to exercise) the power to detain lawfully. … It would be extraordinary if Parliament had intended to confer the power to grant bail where a person has been unlawfully detained or could not lawfully be detained”.
But we have Clause 32 and Schedule 7, which say that a person may be granted bail,
“even if the person can no longer be detained”,
which left my head spinning—but not spinning so much that I do not think that the language is important.
In this debate, we will all refer to “bail” because that is the term used in the Bill, but Amendments 215A and 216A would replace it with the term “temporary admission”. Language should be accurate and should not imply what it is not. We are not wedded to the term “temporary admission”. It used in at least three immigration statutes which I have come across, and indeed there is a Government amendment using the term. But if the Government wish to propose an alternative which does not suggest that detention is the norm, and that is accurate and does not carry connotations—in particular, that does not suggest that persons seeking asylum are criminals—I would of course be happy to entertain it.
I am spending a little time on this issue because it is not just me and the other noble Lords concerned who are nodding. Article 31 of the 1951 refugee convention expressly protects those who claim asylum from being treated as criminals, and I am advised that the UNHCR and other international guidance recognises that detention must always be the exception—a point I would like to emphasise.
In the Public Bill Committee in the Commons, the Minister said that the language was chosen deliberately because it is commonly understood by practitioners, but the point, surely, is how it is understood by others. Anything that risks designating an asylum seeker or someone who is seeking to register his status as an asylum seeker, who is not illegal, as a criminal—instead of, as he often is, as a victim—should be avoided.
Moving on to the other amendments, the language is not new but the restrictive provisions of the Bill are. We have added our names to Amendment 217, tabled by the noble Lord, Lord Rosser, because it gives a role to the judiciary, not the Executive. That is probably the most important issue in this part of the Bill. It highlights the importance of regular and frequent reviews of detention in every case. It is implicit in that, certainly as I read it, that detention should not be automatic nor roll on automatically.
We have also added our names to Labour’s Amendment 220 and to Amendment 221, tabled by the noble and learned Lord, Lord Mackay of Clashfern. It was originally shown as being in his name and that of my noble friend Lord Paddick. I respect the noble and learned Lord’s views and I wondered why my noble friend had done a little exercise of his own. It was only on Thursday that I discovered that he had not, when the noble Lord, Lord Pannick, called me and asked me to speak, since neither he nor the noble and learned Lords, Lord Mackay and Lord Judge, could be here this evening—so the unlearned gets to go first on this. I predict the weight of learning might come to bear at the next stage if the Government do not concede on this point.
Paragraph 2 of the schedule deals with conditions of bail and the sub-paragraphs allow the Secretary of State to override the decisions of the tribunal about residence conditions and electronic monitoring. The organisation Justice—at this point one might say Justice without adding “the organisation”, I think—describes the power of the Secretary of State, who will have requested the First-tier Tribunal to impose conditions, which the First-tier Tribunal will have considered and refused, then to overturn the decision as,
“a direct affront to the rule of law”.
The Constitution Committee asks whether it is compatible with the rule of law for the Executive to be able to override the decision of an independent judicial body, and quotes a number of comments from the noble and learned Lord, Lord Neuberger, in the recent Evans v Attorney-General case regarding freedom of information, when he said that,
“it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive”.
The Constitution Committee also says in its recent report:
“It is also worth noting that, unlike the matter at stake in the Evans case, electronic-monitoring and residence conditions engage considerations of individual liberty—something that arguably renders the prospect of executive intervention more constitutionally dubious”.
The Constitution Committee goes on to express concern about the provisions being,
“in tension with the principles of the rule of law”,
“The usual process, should a Minister have concerns about a judicial decision, would be to appeal against it. The House may wish to ask the Government”— which is what I am doing now—
“to clarify how their proposals comply with the rule of law. The House may also wish to ask the Government why, if the intention is to ensure the use of certain bail conditions for particular offenders (such as satellite monitoring for foreign nationals), they do not simply propose new criteria for the First-tier Tribunal to take into account when setting bail conditions”.
In the Commons Public Bill Committee, the Minister said that the powers would be used “very rarely”. That hardly requires a response other than, perhaps, as I commented earlier, if one is not afraid of something, why not provide for it?
Our Amendments 221A and 221D address matters to which the Secretary of State or the First-tier Tribunal must have regard when determining the grant of bail or bail conditions. One of these is that the person might cause a danger to public health. I would be grateful if the Minister could explain why incarceration would be applied in this case. For instance, would treatment not be more appropriate? If someone is not in the group of people who are seeking asylum and who might be subject to immigration bail—you or me, I might say—but causes a danger to public health, they would not be incarcerated. Other public health provisions might apply but they would not be subject to bail conditions.
The other matter I wish to raise this evening is,
“whether the person’s detention is necessary in that person’s interests”.
My concern is whether this could be used in the case of mental illness and whether it might be open to abuse. It is a very wide provision and there are a number of cases in which the courts have found that the use of immigration detention to protect a person from himself is unlawful. In view of the time I am taking, I will not quote them now, but I have them to hand.
Amendments 221C and 221D are about electronic monitoring and related arrangements, which may require the person to communicate,
“in a specified manner and at specified times”.
Amendment 221C would insert reasonableness. This comes from evidence that a number of your Lordships will have heard during the period when control orders were being applied that controlees were often required to report at times and in places which were very unreasonable and precluded them from normal activities. It seemed to me that, in another context requiring reporting, reasonableness would be appropriate.
The arrangements in the Bill would allow the exercise of functions by persons other than the Secretary of State or First-tier Tribunal, and my Amendment 221D would insert “on behalf of” those. I assume that is what was meant, or has outsourcing crept even further? Certainly, if it has, whoever exercises the functions should be subject to the supervision and control of the Secretary of State or tribunal in this context. I beg to move.
My Lords, I hope it may be for the convenience of the Committee if I observe that, with regard to Amendments 220, 222 and 223, which raise the question of bail conditions and the Secretary of State’s proposed power to address conditions already set by the tribunal, I recognise the important constitutional issues that the noble Baroness, Lady Hamwee, has raised. Given the proposed amendments from all sides of the Committee and the concerns expressed by the Constitution Committee and the Joint Committee on Human Rights with regard to this matter, the Government will think again about this. We anticipate bringing forward before Report a suitable amendment to Schedule 7 with respect to bail conditions. I hope that this assists the Committee.
Very briefly, I support Amendment 215A because I absolutely agree that this is not a trivial matter. I am not an expert on these issues but a social scientist who knows the importance of language. Some years ago, it was quite common among the media and politicians to talk about bogus asylum seekers. That did immense harm, so I absolutely agree that language which has connotations of criminality when applied to asylum seekers is totally inappropriate and could be very harmful.
My Lords, I intervene briefly to support the point that the noble Baroness, Lady Lister, and previously the noble Baroness, Lady Hamwee, have made about the importance of the language we use. When the Minister comes to consider this issue again between now and Report, I wonder whether he will look at the nomenclature that we use here and whether “immigration bail”, with its connotations of criminality, really is the right language for us to use at all. In particular, people seeking asylum are not criminals when one considers that they will include refugees, children, survivors of torture and trafficked people. It is quite wrong to imply that they are necessarily people who are therefore trying to break our laws.
I hope that the Minister will also return specifically to the point made by the noble Baroness, Lady Hamwee, about our duties under international law, especially Article 31 of the 1951 refugee convention, which expressly protects those who claim asylum from being treated as criminals. The UNHCR and other international guidance recognises that the detention of persons seeking asylum must always be the exception, so let us at least start from the basis that those seeking asylum will be among people who are genuine. They will be trying to escape from the most appalling situations in their own countries and are not criminals. We therefore must have some regard for their well-being and status.
I would like to raise one other brief issue in relation to Schedule 7, which is not covered by these amendments but on which I hope that the Minister will be able to provide some clarification. It appears that the introduction of a restriction on studies as a condition either of temporary admission or bail for those subject to immigration control is a new provision. I would be grateful if the Minister would spell that out. No reason for the restriction is given in the Explanatory Notes to the Bill, so I wonder whether we could take this opportunity in Committee to find out what that reason is. Breach of a condition of immigration bail is, as we have just discovered in these exchanges, a criminal offence and therefore has serious consequences. Those lawfully present and in touch with the authorities should not be restricted from undertaking studies. All those subject to immigration control will be on immigration bail, not just persons released from detention. The condition could potentially be applied to children and young people, preventing them accessing further education and even attending their school. I am sure that that is not what the Government had in mind but I hope they will clarify what the consequences of this provision might be.
My Lords, for a long time I have been concerned about immigration detention and I have therefore visited two, if not three, of the detention centres. It is very important for us to take full note of the fact that the Shaw review was not available to the other place when considering the Bill. I emphasise that that review said that the length of detention should be reduced, whether by better screening, more effective reviews or a formal time limit. We also have to recall that this country makes more use of immigration detention than other, comparable western European countries, almost all of which have time limits for it. I also emphasise the extreme vulnerability of some of the people who get detained. I notice that my noble friend Lord Ramsbotham will speak to a specific amendment on this point later.
However, to reinforce that approach, I shall quote from a case detailed by the Detention Forum, which is a large consortium of voluntary organisations. A man whom the consortium code-named Jacques was, it said,
“detained for the purposes of removal to Denmark where he had previously claimed asylum. He had a traumatic history as a child soldier and was severely”,
affected by post-traumatic stress disorder. The forum said:
“Despite being visibly unwell, and despite anecdotal evidence of staff feeling unable to manage the situation, he was detained for over two months before being removed to Denmark. During detention, Jacques suffered periodic blackouts and dizziness, which at least once led to injury. He was unable to communicate with staff or other detainees and exhibited erratic behaviour, at times running naked out of his room or speaking what was understood by staff as gibberish. In response, Jacques was regularly placed in isolation, which appeared to exacerbate his confusion and paranoia. The local visitors’ group made efforts to raise concerns with the detention centre staff, but got no response from the healthcare centre. Attempts to support Jacques were made by a fellow detainee who spoke the same language as well as a solicitor who was willing to represent him for a temporary admission application and for unlawful detention. Jacques’ paranoia made him unwilling to enter the room with the solicitor, and so it was impossible to represent him. Communication was so difficult that his fellow detainee was unable to do much to support him either”.
That surely is the kind of situation which we should do our level best to avoid.
My Lords, my noble friends have been tempted to move into the next group of amendments. I can see why, as bail and detention are so inextricably intertwined, but I will try to resist that temptation. I would say that the question of bail has been raised on successive immigration Bills, and many of us remember that historic repeal by Labour of the clause that would have brought in automatic bail. This issue has a direct bearing on the next group of amendments and the old problem of the inadequacy of initial decisions.
I will simply quote here the words of the highly regarded Detention Forum, which was mentioned by my noble friend Lord Hylton. It said:
“Given the lack of automatic bail hearings for individuals who have been detained, and without the initial decision to detain being sanctioned by any kind of legal proceeding, the lack of effective case-working has serious and damaging consequences”.
I have had some experience of visiting detention centres where there are a lot of patient and courageous visitors who, just like the inmates themselves, have become frustrated with the system. There are some who have committed serious offences but there are genuine migrants and asylum seekers in their hundreds, anxiously awaiting either sentences or appeals for crimes that they have not committed. I understand that in 2014, more than 30,000 individuals were detained but only 12,000 removed. I support the later amendments on the need for a time limit to detention but I will not mention that now. We have already heard the example of Yarl’s Wood and of the work of the Shaw report, so I will leave that for later.
My Lords, the intervention by the noble and learned Lord, Lord Keen, is helpful in respect of this group of amendments. It starts with Amendments 215A and 216A in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. These amendments seem practical and proportionate. I concur with the points made by the noble Baroness, Lady Hamwee: a person must be released if there is no power to detain and they cannot lawfully be detained, and it does not seem right to use the term “bail”. I particularly agree with the point made by the noble Baroness, Lady Hamwee, and other noble Lords that language must be accurate. People seeking asylum should be seen as victims and not treated as criminals. That is an important point.
Amendment 217, which was tabled by my noble friend Lord Rosser, the noble Baroness, Lady Hamwee, the noble Lord, Lord Paddick and me seeks to add an additional clause that sets out a process whereby somebody detained has a clear procedure to go before the First-tier Tribunal within eight days, then after 36 days and then every 28 days for it to determine whether they should be released on bail. This is an important role for the judiciary, as the noble Baroness, Lady Hamwee, said. The amendment makes provision for detention not to be indefinite and for a proper review process. Depriving somebody of their liberty is a serious matter. It is right that the reasons for detention should be vigorously tested and that the tribunal should be satisfied that there is no other reasonable course but to detain the person. We support this amendment.
Amendment 219 seeks to remove from the Bill the power for the Secretary of State to detain an individual granted bail by the tribunal without just cause. Amendments 220, 222 and 223 would remove the provisions that would allow the Secretary of State to override the decisions of the tribunal with regard to electronic monitoring or residence conditions on immigration bail. Amendment 224 would require the Secretary of State to make provide accommodation facilities for a person released on bail. This is an important provision under the heading:
“Powers of Secretary of State to enable person to meet bail conditions”.
Ensuring that a person has a roof over their head should be a primary concern.Amendments 221A and 221B in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, seek to remove the words,
“causing a danger to public health”,
“in that person’s interests or”.
I particularly look forward to the response of the noble and learned Lord, Lord Keen, on this. The noble Baroness, Lady Hamwee, made an excellent point.
Amendment 221C clarifies that the arrangements to communicate must be reasonable. It is important requirement. These are difficult matters and the emphasis on the word “reasonable” is very welcome. Amendment 221D makes clear that the functions are exercised on behalf of the Secretary of State. The remaining amendments are in the name of the noble Lord, Lord Bates, and I looking forward to an explanation of them.
I am obliged to the noble Baroness and to noble Lords for their observations on this part of the Bill and on bail. I notice that we have all referred to “bail” throughout the debate. Going back through various parliamentary reports over many years, the references are consistently to “bail”. It is a term that we understand in this context. That is important because, as the noble Baroness observed, the use of language is significant in this context. It is as well to bear that in mind.
I shall look first at Amendments 215A and 216A on the use of the term “immigration bail”. Let us be clear: no one is seeking to criminalise immigration or to treat immigrants as criminals. It so happens that the term “immigration bail” has come into common parlance in this context. Clause 32 and Schedule 7 are intended to simplify the current powers on bail and temporary release contained in various Immigration Acts, effectively reducing six different forms or statuses to one. The description “immigration bail” was chosen because it is a well-understood concept. The statutory underpinning for criminal bail and immigration bail are in entirely different pieces of legislation. The naming of immigration bail is not about criminalising people. It is about being clear about an individual’s situation. The term “temporary admission” could have been chosen, but it is a less accurate way of describing the status as it would not capture, for example, the circumstances of individuals encountered in the UK without leave or those who had leave but are subject to a deportation order. In these circumstances, we resist the suggestion that “immigration bail”, which is widely understood by those who engage in this debate, should be replaced by “temporary admission”, which is less exact and less accurate as a means of describing the relevant status.
Amendment 217 is on automatic bail hearings. It would require a bail hearing in the tribunal after eight days of detention, then after 36 days and every 28 days thereafter. The Government take matters of liberty seriously and have made clear in the recent Written Ministerial Statement by my right honourable friend the Minister for Immigration that changes to policy and the operational approach to detention should lead to a reduction in the number of those detained and in the duration of detention before removal, especially for the most vulnerable. However, the Government do not consider that introducing mandatory and scheduled bail hearings will aid these reforms. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention or for a writ of habeas corpus to the High Court, again at any time.
The current system is flexible by design, both in the interests of justice and in allowing the detainee ready access to the tribunal. Introducing automatic bail hearings at set periods in all cases would be a significant resource burden on the tribunal at the expense of the taxpayer and would take valuable judicial time that could be spent on other matters, potentially prolonging the time spent in detention and denying other appellants timely access to justice. Mandatory bail hearings at set intervals were placed on a statutory footing, as a noble Lord observed, the last time the Opposition formed a Government, being legislated for in Part III of the Immigration and Asylum Act 1999. However, they were never brought into force and were repealed in the Nationality, Immigration and Asylum Act 2002. What was the reason for the repeal? The plans were unworkable in practice and would have been a significant resource burden. That remains the position today, so we resist the amendment.
Amendment 221A would remove the requirement to consider the public health implications of bailing an individual. It is not about incarceration. In order to detain pending removal, there must be a realistic prospect of removal in a reasonable timeframe. Paragraph 3 of Schedule 7 sets out a number of factors that the bailing authority must have regard to when considering whether bail is appropriate and the conditions of bail that should be imposed. Naturally, risk to the public and community is a paramount consideration, whether that is the likelihood of the person committing an offence, the likelihood of the person absconding or the likelihood of the person’s presence in the UK being a danger to public health. This would, for example, be a consideration if there were a pandemic and an individual were infected and detained pending removal. Clearly it would not be possible to detain under immigration powers if the sole consideration was protecting public health and there was no underlying immigration justification for the exercise of the detention power. It is a justifiable power in the context of protecting public health.
Amendment 221B would remove the requirement to consider whether it is in a person’s best interests to be detained before being released on bail. I understand the reason why this amendment has been laid, as when could it ever be in anyone’s best interests to be detained? First, let me be clear on a point of principle. It is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. This is long standing and will not change. It is important to put that on the record and I am sure that the whole Committee will agree that this is right.
The thinking behind this provision is simple. When detaining under immigration powers, normally for examination purposes, there will be a very limited number of cases where the Home Office’s duty to safeguard individuals at risk—both adults and children—will mean that a very short period of detention may be justified while arrangements are made for an individual to be transferred to appropriate care. For example, a very short period of detention may be necessary for safeguarding reasons where an unaccompanied child arrives at a port, especially late at night, with uncertain or no care arrangements. At present there would be no lawful basis for detaining the child for their own benefit and their own protection.
I want to be clear to the Committee that detention under immigration powers to ensure that an individual is not put at risk and is safeguarded should be used in only a limited way, for the shortest period possible and only when there is a lawful underlying immigration power to detain. We are talking about a period of hours, not of days or weeks. Again, we resist this amendment.
Amendments 221C and 221D would make changes to the arrangements in support of electronic monitoring conditions and how they operate. These amendments are not necessary. The language on electronic monitoring in paragraph 4 of Schedule 7 is virtually a word-for-word reproduction of the current electronic monitoring power in Section 36(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It is simply a case of importing the existing provisions into the new bail power.
Amendment 224, spoken to by the noble Lord, Lord Kennedy, concerns accommodation and support provided to anyone released on bail. This would be an unnecessary provision. Paragraph 7 of Schedule 7 provides a power for the Secretary of State to ensure that a person can meet bail conditions by paying for the costs of their accommodation and travel expenses in appropriate circumstances. It is not right to mandate in statute that the Secretary of State must pay for accommodation and travel costs, particularly in these times of austerity.
The arrangements in the Bill are designed to replace Section 4(1)(c) of the Immigration and Asylum Act 1999, which is repealed under the Bill but which to date has been used to provide accommodation for persons released on bail in the limited circumstances where it is felt that that would be appropriate. The repeal is part of the wider changes to support provision for failed asylum seekers and other irregular migrants. The power is deliberately drafted in a narrow way because it will not generally be necessary to arrange accommodation for those on bail or to pay for travel expenses. The individuals will usually be expected to accommodate themselves—for example, with friends or relatives. This is not any different from the way in which Section 4 is currently used. If the person really is unable to arrange their own accommodation, the powers can be used to provide it on a case-by-case consideration of the particular circumstances, including whether they are able to avoid the consequences of being left homeless by returning to their own countries.
The noble Lord, Lord Alton of Liverpool, made a point with regard to restrictions on studies and the provisions in Schedule 7. This existing power is used only in the context of a terrorism-related issue which is subject to SIAC provisions. I would be content to write and elaborate on that in due course. I had not anticipated that the point would be raised, but I emphasise that this is an existing power used only in the most exceptional circumstances pertaining to terrorism. If the noble Lord wishes me to write further on that, I would be glad to do so.
My Lords, I am grateful to the Minister for giving that clarification. It would be a convenience and a help to the House and to those who have made representations about this if further clarity could be given. If the power is to be used only in circumstances relating to terrorism, that seems a reasonable and justifiable provision.
I am most obliged to the noble Lord and I undertake to write on that point.
The government amendments that arise here are essentially consequential amendments. Amendments 224E to 224K are consequential amendments to legislation to ensure that the provisions in Schedule 7 work as they should, by bringing existing legislation into line with Schedule 7, removing references to provisions which have been or are being repealed by Schedule 7 and, where necessary, inserting references to the relevant provisions in Schedule 7. Amendments 229ZA and 230ZA are consequential amendments to Schedule 8 to the Bill to reflect the amendments and repeals made in Schedule 7.
I am conscious that your Lordships had in mind not only the question of bail but the question of detention. However, as that is going to be addressed in a further group of amendments, I will come to that when we address that further group. I hope your Lordships will support the amendments standing in the name of my noble friend Lord Bates, but I ask that noble Lords withdraw their amendment—I say noble Lords, but I address that to the noble Baroness, Lady Hamwee.
My Lords, I think we are all Lords, whether Lords or Baronesses. I am obviously pleased to hear that the Government are considering the issues around the relationship between the Executive and the judiciary raised in the three amendments, although I am not entirely surprised, as I felt that the arguments—they were not mine—were irresistible. I was also interested to hear the response on the restriction of studies. It will be very helpful to see the detail of that.
I said when I moved my amendment that I would use the term “bail” in the debate because that is the term used in the Bill, although “temporary admission” is in fact used in a government amendment later. When we are bringing six statuses into one, it seems the perfect time to change the terminology. It does not necessarily have to be temporary admission—I heard what the noble and learned Lord said—but any ideas will be gratefully received on this. It is clearly something that other noble Lords feel as strongly about as I do.
I will just pick up two other points. On safeguarding for a very short time, I would be much happier if I saw that short time limit reflected in the legislation. After all, we are talking about detention here, and it is particularly ironic if it is applied to people who are on their way to care and support, which are the categories referred to. As regards public health, I suspect that if one holds a visa and comes in through a recognised route, but is found at Heathrow or wherever to be suffering from a communicable disease, one’s destination is hospital not detention.
We will wait to see the amendments on the central issue of the Executive’s power in this regard—or otherwise—and I beg leave to withdraw my Amendment 215A.
Amendment 215A withdrawn.
Clause 32 agreed.
House resumed. Committee to begin again not before 8.38 pm.