Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018 - Motion to Regret

– in the House of Lords at 6:00 pm on 27th June 2018.

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Moved by Lord Ramsbotham

That this House regrets that the Immigration (Guidance on Detention of Vulnerable Persons) Regulations and the Detention Centre (Amendment) Rules 2018 were made before Stephen Shaw CBE had completed his review of the implementation of the report, Review into the welfare in detention of vulnerable persons, preventing his concerns about the definition of torture from being taken into account, and resulting in a definition too complex to be easily applied by caseworkers and doctors being included (SIs 2018/410 and 2018/411).

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench

My Lords, I will not beat about the bush. The purpose of my regret Motion is to ask the Minister whether the Government will consider the immediate withdrawal of these two statutory instruments before they can do harm to certain vulnerable individuals, and until a number of preconditions, of which the Home Office has been made aware and which I will outline, have been completed. Statutory Instrument 410 introduces the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016, enacting the draft updated guidance contained in the Immigration Act 2016. Statutory Instrument 411 introduces a new definition of torture into detention centre rules. Together, they provide the statutory footing for the adults at risk framework, introduced in September 2016 to improve safeguards for people who are particularly vulnerable to harm in detention. As neither instrument is due to come into force until 2 July, there is still time to withdraw them and initiate the alternative action that I will put forward. If this appears a little tight on timing, I should explain that I tabled my Motion some weeks ago, but its date was confirmed by the Whips’ Office only last week. The remainder of my contribution will be an explanation of why I am making this request.

In a recent debate on the vulnerable persons resettlement scheme, tabled by the noble Lord, Lord Scriven, I mentioned that the Independent Asylum Commission, which reported in 2009 and of which I was a commissioner, characterised the attitude of the Home Office to any asylum seeker, or indeed any outside advice or information, as a “culture of disbelief”. This was triggered by our hearing of a Sri Lankan victim of torture whose case was not believed by the Home Office, which resulted in him being sent back to Sri Lanka, where he was tortured again. Luckily, when he returned here for the second time, his case was believed.

In 2015, in response to growing concerns about the use of immigration detention, the Home Office commissioned Stephen Shaw to carry out a review of the welfare of vulnerable people in immigration detention. In his report he highlighted the lack of safeguards for vulnerable detainees and recommended a drastic reduction in the use of immigration detention. The Immigration Minister’s broad acceptance of Shaw’s recommendations was given statutory footing in Section 59 of the Immigration Act 2016, the purpose of which is to ensure that all individuals, particularly those who are vulnerable to harm if detained, are identified and protected. In the event, neither statutory instrument, nor the adults at risk guidance, delivers that purpose.

The proposed definition of torture is far too complex to be easily applied by Home Office caseworkers and doctors in the identification of vulnerable persons, and its concepts are clinically nebulous. For example, it invites doctors to make subjective judgments as to whether a victim did enough to resist ill-treatment or whether he or she was sufficiently robust to cope with it. Extracting the necessary information will require intrusive investigation of a vulnerable person that far exceeds the safeguards and the standard of proof that applies. In particular, the concept of powerlessness is ill suited to the determination of vulnerability to harm in detention, as both doctors and caseworkers will struggle to form a consistent and fair interpretation of such complexity.

The definition in SI 2018/411 seeks to distinguish between torture and ill treatment. That is an important distinction in international law, but entirely unnecessary and inappropriate when identifying those vulnerable to harm in detention. Even when applied correctly, the definition will exclude a whole cohort of victims of severe ill treatment who do not fall within the indicators of risk. These include victims of interpersonal violence on grounds of race, ethnicity, sexuality, tribal groups, blood feuds or clan origins, none of which presents an obvious situation of powerlessness in relation to the perpetrators of violence.

In fact, the adults at risk guidance has raised the threshold for a decision not to detain by increasing the evidentiary burden on vulnerable individuals. Under the previous policy, and not subject to the culture of disbelief, victims of torture needed only to show independent evidence of their history of torture in order to be considered unsuitable for detention, except in very exceptional circumstances. The new guidance, however, includes an additional requirement to present specific evidence that detention is likely to cause harm in order for release to be seriously considered. That evidence is extremely hard to come by before harm has actually occurred. By introducing a much wider range of immigration factors that have to be considered before a decision not to detain can be justified, the guidance has also weakened the protection offered to vulnerable people.

A number of NGOs working with immigrants immediately raised serious concerns about the adults at risk guidance, including the changes to the definition of torture, which previously had been based on case law and was not defined in government policy. This had been proved to be wide enough to include victims of torture, who, evidence showed, were particularly vulnerable to harm in detention. The charity Medical Justice and seven detainees challenged these changes in the High Court, the judge finding them to be unlawful and ordering their suspension. In addition, the judge instructed the Home Office to review and reissue the policy in a reasonable time, but did not place any obligation on the Home Secretary to define torture in the updated policy.

In parallel with this, Stephen Shaw carried out a second review—this time, of the Government’s progress towards fulfilling the recommendations in his first—which he delivered to the Home Secretary at the end of April this year. Despite promises that it would be published by the end of this month, it has still not appeared. Indeed, the Minister, who had clearly seen it when he responded to a recent Early Day Motion on the subject in another place, did not disclose any of its conclusions or recommendations to those taking part in the debate, which left them in the dark as to what he was saying. He also back-pedalled on the promised date of the report’s publication. Therefore, I ask the Minister to clarify the situation regarding the date of publication of Shaw’s second report and to tell the House when we can expect both it and the Government’s response.

The statutory instruments were laid before Parliament on 27 March this year, following a wholly inadequate and expedited consultation on the new definition of torture with a limited group of NGOs. They cautioned that no further definition should be considered in isolation from the necessary revisions to other elements of the safeguards, such as detention centre rules and the adults at risk guidance. They also asked the Home Office to await publication of the second Shaw review, to allow consideration of his findings before laying changes before Parliament. Their cautions were studiously ignored. I cannot help contrasting the Home Office’s unseemly rush to publish what is so clearly flawed with its unseemly procrastination over the short-term detention rules, taking over twice as long as World War II to publish in 2018 something originally promised in 2006. The noble Lord, Lord Dubs, whose letter on immigration of 28 March I co-signed, was also studiously ignored when he proposed the same action.

So what to do about this mess? As I put to the Minister at the start of my contribution, the statutory instruments should be immediately withdrawn and any changes to existing policy regarding the safeguarding of victims of torture or ill treatment postponed until after the publication of the second Shaw review, and subject to a proper consultation, subject to government guidelines. There is no need to define torture in either the adults at risk guidance or detention centre rules, so the proposed definition should be withdrawn from both. The broad range of immigration factors used to justify detention of those identified as being particularly vulnerable to harm should be replaced by a return to the previous threshold of very exceptional circumstances. There should be no need for a victim of torture or ill treatment identified as likely to be vulnerable to harm in detention to demonstrate any further why he or she is likely to suffer harm in detention. I beg to move.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bring forward this regret Motion on such an important subject. He has already made the case against the new definition of torture in the regulations extremely persuasively. I shall simply do two things: first, ask the Minister some questions; and, secondly, underline why this is so important.

In her letter to me of 24 April drawing the regulations to my attention, the Minister acknowledged concerns raised by some NGOs about the Government pressing ahead with these changes in advance of the publication of Stephen Shaw’s review into the implementation of his previous report into the welfare of vulnerable people in detention, already mentioned. She sought to reassure me that the changes made at this point are,

“purely for the purposes of implementing”, the High Court judgment on the definition of torture. But that is no reassurance at all; it is the very fact that this judgment is being implemented in this way that concerns the NGOs that have years of experience of working with people who have suffered torture.

Even if the Home Office were correct in its view that it needed to act swiftly, why did it need to do so by introducing a new definition of torture in the face of well-grounded objections from these organisations? As the noble Lord, Lord Ramsbotham, said, the High Court did not require a new definition of torture in response to its decision. Why could not the Home Office revert to the status quo ante until after the publication of the Shaw review and then consider the question as part of the wider review of the treatment of vulnerable people?

The same question was asked by my honourable friend Joan Ryan MP at the end of the debate she initiated in the House of Commons on 14 June. However, the Minister, while acknowledging that the current adults at risk policy is far from perfect—which is welcome—did not really answer the question, even though she said that she would. She said she was not seeking to turn the clock back without explaining why, in answer to Joan Ryan’s question, and I would be grateful if the Minister could do so now.

In doing so, could she also explain why the Home Office has seen fit to disregard the views of organisations such as Freedom from Torture and the Helen Bamber Foundation, which know more than anyone about the cruelty of torture and its terrible effects? It is the evidence from these and other organisations, such as the BMA, Women for Refugee Women and, most recently, the British Red Cross, that underlines why this Motion is so important.

I find it difficult even to imagine what it must be like to have been be subjected to torture. It is too easy for it remain a rather abstract concept and to lose sight of what it means to have been deliberately harmed by a fellow human being with often devastating consequences. Yesterday I attended the 10th anniversary celebration of Survivors Speak Out. One of those survivors spoke of his time in detention. He said, “We have already suffered so much”, and compared the experience of detention with the torture that he and fellow survivors had lived through.

In its report on health and human rights in immigration detention, the BMA noted:

“Pre-exposure to trauma is a key contributor to the rates of mental health problems in the detained population. One theme that emerges from the literature is that of the ‘retraumatisation’ detention can cause—in particular for those who may have experienced trauma in the form of detention or at the hands of authority figures in their home country”.

It also noted that the detention environment can be particularly retraumatising for LGBT individuals who have faced persecution and women who have suffered sexual assault and gender-based violence.

Evidence of such retraumatisation is provided in the Women for Refugee Women’s report, We Are Still Here, which said that,

“the women we spoke to for this report talked about the trauma of being arrested and locked up, and how this had triggered memories of their previous experiences”.

A recent British Red Cross report provides further evidence not only of the damaging mental health effects of detention—the original Stephen Shaw report also provided a lot of evidence for that—but of how they persist long after detention. One of its recommendations, which others have also made and which I hope the Home Office will consider in its forthcoming review, is that the Home Office should adopt a vulnerability screening tool to screen individuals prior to the decision to detain and identify vulnerabilities that may develop while people are in detention.

Surely it is shaming that detention policies are causing harm to a group of people already so vulnerable because of the harm from which they have fled. Surely we have a responsibility to protect them from harm, not add to it. We have been warned by the organisations that work with torture survivors that these regulations will cause further harm, as the noble Lord, Lord Ramsbotham, said. That is why they should be withdrawn.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration) 6:15 pm, 27th June 2018

My Lords, I am grateful to the noble Lord, Lord Ramsbotham, for bringing this Motion forward. I start from the position that immigration detention does not do anybody any good. I find it hard to think that one would be liable to be harmed, whether one is vulnerable—a term I do not find easy—or not. Which of us would be robust enough?

In a previous debate, I quoted from Never Truly Free, a recent British Red Cross report on the humanitarian impact of the UK’s immigration detention system, including the mental health of detainees after release. It concluded:

“Immigration detention has a known negative impact on mental health. Most detainees will have experienced some form of trauma in their life before detention, the effects of which can be exacerbated in detention”.

It also stated:

“The damage done by detention does not simply go away once someone is released and the negative impact on mental health persists long after detention”.

I say this because I do not want to belittle, by implication, the experience of detainees who are not vulnerable—or at any rate, not “particularly vulnerable”, as per the phrase in Section 59—and to make the point that the definition of torture might be a little less difficult if we detained fewer people and for no longer than a maximum fixed period.

I have some sympathy with those who struggle with that definition, but this will always be a problem when you start from the wrong place and grapple with something that is not necessary. As has been asked, why is it necessary to distinguish torture from ill treatment for this purpose? The noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Lister, referred to Shaw—like Leveson, he must have got used to becoming a noun. It prompts me to ask whether he had any input in the content of these statutory instruments. Indeed, has he approved the definition?

As we have heard, we have been briefed by organisations with considerable experience of both working with victims of extreme cruelty and advancing the understanding of torture. They are very critical of the Government’s approach, both the detail and the principle. As we have also heard, the court did not require the Home Secretary to define the term.

What are we to make of the paragraph on “Consultation outcome” in the Explanatory Memorandum to the two instruments? It states that,

“the Home Office has discussed the proposal”— that is, the definition—

“with interested non-governmental organisations (NGOs). The Home Office has considered comments made by NGOs and has committed to engaging with them as the detailed guidance and training for decision makers are developed”.

I was not aware that NGOs had the limited opportunity described to give their views to the Home Office, but those views are not reported in the memorandum. I take it that they were not accepted. As a matter of good practice, it seems to me that the memorandum should be much clearer on this.

My confidence in the process was not helped by the Explanatory Note to both instruments. It states:

“A full regulatory impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen”.

I do not know about a financial impact, but by definition there will be an impact on those undertaking Rule 35 assessments and on the numbers held in detention. There must be an impact. Medical practitioners have a difficult enough task in making assessments with time and other constraints and in a place and in circumstances which are far from the safe and supportive environment needed to work with such patients—I use the term deliberately—and which are likely to contribute to ongoing trauma, to exacerbate symptoms and to impede the healing process.

I am also interested in the concepts of control and powerlessness in the definition. At any rate, they certainly allow for the argument that a victim with a particular history of being controlled and powerless will experience detention as torture. With regard to that history, what is meant by powerlessness? The noble Lord has raised this point. Will the Minister confirm that the definition is not confined to a physical situation and that control and powerlessness may be different for different people?

Under the draft guidance, an individual is regarded as at risk—we discussed this at Questions the other day—if they are,

“particularly vulnerable to harm if placed or remaining in detention”.

Why is this in addition to the history? Why has it been added? In fact, as a matter of the construction of paragraph 7, is that something that the individual needs to declare, or is it an objective matter for the third party? I have read the paragraph several times and I am not sure.

I understand that the guidance introduces a wider range of immigration factors than before, placing far greater emphasis on non-compliance. My final question is: does this not of itself affect the balance, which we are told is sought, between,

“protecting the vulnerable and ensuring the maintenance of legitimate immigration control”?

That comes from paragraph 1, on the purpose of the guidance.

In summary, these Benches support the Motion. We share the noble Lord’s regret and our regret goes much wider, too.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

I add my thanks to the noble Lord, Lord Ramsbotham, for providing us with this opportunity to debate this issue of concern over the Government’s actions and decisions on the welfare of vulnerable people in immigration detention. We agree with the concerns that the noble Lord expressed about how the Government are dealing with this matter and his proposals for addressing the situation.

As I understand it, it is meant to be Home Office policy that vulnerable people, which includes the victims of torture, should be detained only in exceptional circumstances, for example, if they are likely to offend or cause a public safety risk. However, that does not always appear to be the case, because in the year ending last March there were apparently well over 26,000 exceptional circumstance cases in immigration detention. Once again, as I understand it, these are not even people whose removal is imminent, since about half are released back into the community.

In his first review, Stephen Shaw said that detention in and of itself undermines welfare and contributes to vulnerability. Half a dozen court cases in the last few years have drawn attention to the unacceptable treatment of detainees. I believe that the death rate among detainees in immigration detention has risen. Last year, 11 people died in custody.

The situation reached such a state that in 2015 the now Prime Minister, then Home Secretary, asked Stephen Shaw, the former Prisons and Probation Ombudsman, to conduct a review of the welfare of vulnerable persons in detention. His report concluded that the safeguards for vulnerable people were inadequate, that immigration detention was used too often and for too long, and that the impact on mental health increases the longer detention continues. However, in implementing their adults at risk policy, the Government did not fully address the concerns raised by Stephen Shaw. Indeed, the Government’s detention centre rules and guidance on the detention of vulnerable persons seemed to increase the risk of harm. In its first 10 weeks of implementation, the Government’s adults at risk policy was applied incorrectly in almost 60% of 340 cases. Torture survivors continue to be detained and torture is one of the 10 indicators of risk in the adults at risk policy.

The guidance on the detention of vulnerable persons increases the burden of providing evidence on the vulnerable individual, since specific evidence will be needed that detention is likely to cause harm and the risk of harm in detention has to outweigh a range of immigration factors, such as the risk of absconding. In effect, it requires a person to prove that they will not abscond, which one would have thought was extremely difficult to do. The guidance already includes a broad range of immigration factors that can justify detention, even of torture survivors.

The result has been that the release rate, following a report designed to screen torture victims out of detention, has fallen considerably. In the third quarter of 2016, before the policy change, nearly 40% of those in the report in question were released. In the first quarter of 2018 that number had fallen to just 12.5%. Those figures were borne out in a 2017 High Court ruling in a case brought against the Home Office that the adults at risk policy unlawfully imprisons through immigration detention hundreds of victims of torture. The Home Office had previously decided to narrow the definition of torture so that it refers only to violence carried out by state actors. Apparently, it now excludes vulnerable survivors of non-state abuse, such as by ISIS, Hezbollah or the Taliban.

The Government have tabled the two statutory instruments we are discussing in response to the High Court’s ruling. However, the organisation that brought the successful case against the Home Office has said that the new torture definition is inappropriate and too complex for caseworkers and doctors to apply to specific cases, and that even when applied correctly the definition will exclude a group of victims of severe ill treatment who do not fall within the other indicators of risk.

As I understand it, the Government were actually asked by NGOs to await the publication of Stephen Shaw’s re-review into the welfare of vulnerable people in detention to allow consideration of his findings before laying changes before Parliament. The Government have now had the Shaw re-review for some two months, but others have not been given a chance to consider his latest recommendations since, subject to the Minister saying otherwise, it has not been made available by the Government.

The Government’s argument for not allowing consideration to be given first to the findings of Stephen Shaw’s re-review appears to be that they could be in difficulty if they have not produced a revised adults at risk policy within 12 months of the October 2017 High Court judgment. But did the judgment specifically say that, and did it say that the Government should not await the outcome of any re-review before revising their adults at risk policy? The Government have had the Shaw re-review for two months. There is nearly a further four weeks to go before the Summer Recess, without taking account of the two-week short sitting in September. If this Government want to speed up processes, they have previously shown that they can do so. They could have, and still can, in this case and ensure that there is an opportunity to consider these two statutory instruments while they are still drafts in the light of the findings of Stephen Shaw’s re-review. Doing so might avoid the Government having another uncomfortable day in court.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 6:30 pm, 27th June 2018

I thank the noble Lord, Lord Ramsbotham, for securing this debate. I want to say at the outset that I appreciate his insight into this issue of immigration detention and the concern that he has consistently shown for the welfare of detainees. I also thank other noble Lords from all sides of the House for their contributions.

We put significant effort into encouraging individuals to comply with the Immigration Rules and to support those with no right to remain to leave the UK voluntarily. Unfortunately, a minority of individuals refuse to comply, and detention can be a necessary and proportionate tool for enforcing their return.

As I have said, detention is used sparingly, and we operate a strong presumption in favour of not detaining. At any one time, of those people with no lawful basis of stay in the UK and who are liable to removal, 95% are managed in the community and not in detention. The number of individuals whom we detain has decreased. In the year ending March 2018, there was an 8% reduction in the number of people entering detention compared with the previous year.

For every individual detained, there must be a realistic prospect of removal within a reasonable timescale. As part of the decision to detain, there should be an assessment as to the likely duration of detention. In addition, alternatives to detention will have been considered, or will have failed, in each case.

The majority of people are held for short periods. Ninety-one per cent of those leaving detention in the year ending March 2018 were detained for less than four months and 64% for 28 days or less.

As the noble Lord, Lord Rosser, mentioned, the welfare of vulnerable people in immigration detention is of the utmost importance to the Home Office. Where it is necessary to detain people to remove them, a number of safeguards are in place. One of these is the adults at risk in immigration detention policy, referred to by the noble Lord. Others include the presence of healthcare staff in all immigration removal centres and residential short-term holding facilities; a comprehensive suite of published guidance and operating procedures to govern conditions in centres and support the well-being of detainees; regular reviews of detention by senior officers to ensure that detention remains appropriate; and independent judicial oversight of immigration detention.

The adults at risk policy, implemented in September 2016, provides a vital safeguard. It was a key part of our response to Stephen Shaw’s review of the welfare of vulnerable people in immigration detention commissioned by the Prime Minister when she was Home Secretary. Under this policy, vulnerable people are detained, or their detention continued, only when the immigration considerations in their case outweigh the evidence of vulnerability—the balance that the noble Baroness, Lady Hamwee, talked about. Detention decisions are made on the basis of all available evidence. Cases are reviewed at regular intervals and whenever new evidence comes to light in respect of removability and vulnerability.

That brings me to the new definition of torture in the context of immigration detention. I do not think that anyone would dispute that victims of torture—and, indeed, all those identified as vulnerable—should be considered to be particularly at risk of harm in immigration detention. But it is not, and has never been, government policy that such individuals should never be detained. There is no absolute exclusion from detention for any category of person. However, for individuals considered to be at risk, the policy strengthens the presumption against detention. It carefully balances an individual’s vulnerability considerations against the immigration considerations so that detention is considered in individual cases only when immigration considerations outweigh the risk identified.

The way in which torture is defined in the context of immigration detention has a long history. We currently use the EO definition established in case law in 2013. This is a broad definition which led to some cases being inappropriately considered as torture, thereby diverting attention from the most vulnerable. As a result, the Home Office brought into force the United Nations Convention against Torture definition of torture, with the introduction of the adults at risk in immigration detention policy in 2016. Following a judicial review of the policy, and as an interim relief measure, the High Court ordered the Home Office to revert to the EO definition, and we did so in December 2016. The court subsequently declared the UNCAT definition to be unlawful when used for the purposes of immigration detention. However, it declared that the adults at risk policy was inherently sound and lawful.

In addition, the court further stated that the EO definition was deficient for the purposes of immigration detention. The judge set out his carefully considered view of what a rational definition should look like in this context, taking into account the impact of acts of harm on those in detention. He came to this view having heard a wealth of expert evidence, including that provided by experts associated with the litigants, Medical Justice. We have used the judge’s clearly expressed view as the basis for the definition set out in the statutory instruments laid before Parliament on 27 March 2018. In answer to the question “Why can’t we withdraw the SIs?”, we cannot withdraw them and revert to the old definition of torture as laid out in EO as that was judged to be deficient for the purposes of immigration detention. It was too broad and led to some cases being inappropriately considered, diverting attention from the most vulnerable, as I have said.

The court also said that the broad safeguarding provisions were not effective and the guidance needed to be amended. The statutory instrument bringing into force the revised statutory guidance meets this requirement.

Noble Lords have said that the Home Office should have waited for Stephen Shaw’s follow-up report to be published before making any amendments to the definition of torture. Let me be clear: the changes we are making are to implement the court’s judgment in full, with the reasonable timescales it set out. Until Mr Shaw’s report has been formally published, I cannot discuss its contents. However, I can say that officials kept Mr Shaw’s team informed of the work they were doing to implement this new definition while they engage with the NGOs on this issue.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

In the light of the Minister’s comment that officials had informed Stephen Shaw of what they were doing, is she saying, or seeking to imply, that in fact his re-review has given the Government’s proposals in these statutory instruments a clean bill of health? If that is what it has done, why not publish it now?

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I will get on to when it will be published. I am simply saying that officials kept the team informed of the work they were doing to implement the new definition while they were engaging with NGOs. We will carefully consider all of Stephen Shaw’s recommendations, as we did last time, and take them into account when we review detention centre rules, including the operation of the rule 35 reporting mechanism later this year. We will publish his report with a full government response before the House rises in July, in answer to noble Lords’ questions.

As I said, the current imperative is to ensure that, in the light of the court’s very clearly expressed view, we implement a lawful and effective definition of torture for the purpose of the adults at risk policy. There is no reason to delay this. It is separate to, and not dependent on, Mr Shaw’s report.

It has been suggested that the new definition of torture in the context of immigration detention is too complex to be applied by caseworkers and doctors. I do not accept this. It fully reflects the guidance handed down by the High Court. The court, in turn, had the benefit of a large amount of expert and clinical evidence, much of which was submitted by the litigants, Medical Justice. So there is no reason to believe that caseworkers and doctors will find the definition of torture set out in the statutory instruments too complex.

The noble Baroness, Lady Lister, asked whether the consultation with NGOs was sufficient. There was no legal obligation to run a consultation, but officials willingly engaged with them on the definition of torture and on caseworker guidance and training.

The noble Baroness, Lady Hamwee, asked—

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

I think the Minister might be getting us a bit mixed up, because the noble Baroness, Lady Hamwee, spoke more about consultation. What she wanted to know, and therefore what I will ask now, is: what was the response? That was not made clear in the Explanatory Memorandum. The response to us was that the organisations are very unhappy about this, which is why this Motion has been brought this evening.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

Perhaps I may come back on that. I quoted the paragraph on the consultation outcome because the implication of the Home Office saying it has considered comments from the NGOs is that there is no difference between them, or at least nothing substantial, and that we should not be worried about whether the NGOs made critical comments—which we have discovered they did.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I take both noble Baronesses’ point. We did engage with the NGOs. What are the differences between us? I will get back to the noble Baronesses and place a copy of the letter in the Library in due course, because I do not have the information on what the feedback was.

The noble Baroness asked about powerlessness being confined to physical situations. It is also a consideration in cases where no physical harm takes place, so it could apply in a situation in which, for example, an individual is subjected to psychological abuse.

Perhaps I may conclude with a word on training. Over the past six weeks, officials have delivered an extensive training programme for caseworkers making detention decisions and for healthcare staff based in immigration removal centres and residential short-term holding facilities. One thing that NGOs have been able to do is observe that training and provide feedback, which the trainers have taken on board.

On the broader question, I hope that both noble Baronesses will allow me to get back to them on that. New and comprehensive guidance will be provided for caseworkers and healthcare staff. I hope that we will be able to provide caseworkers with the guidance and the knowledge that they need to make consistent and fair decisions, which is what we all seek. We will keep the guidance under review.

The Government are committed to discharging their duty to control immigration effectively and to secure our borders, but I can assure noble Lords that of course at the same time we are absolutely committed to the welfare of all detainees and to protecting the victims of torture and other vulnerable people in immigration detention. Those aims are not incompatible, and it is to these complementary ends that we are implementing the court’s judgment now.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 6:45 pm, 27th June 2018

My Lords, I thank the Minister for her comments. I note that many of them are more general than the point of my Motion to Regret, which is to do with detention. I shall pick up on her last point about the training of caseworkers. I would be most grateful if she could put a copy of the training programme for those caseworkers in the Library, because in the past the training of caseworkers has been one of the weak spots in the whole immigration system. I can well remember that, when inspecting immigration removal centres, I would find that the director was absolutely appalled at the low standard of training of his staff. I would pick up in particular the point made by the noble Baroness, Lady Lister, about the assessment of vulnerability and the register for that.

I should also like to thank the noble Baronesses, Lady Lister and Lady Hamwee, and the noble Lord, Lord Rosser, for their comments. If I was the Home Secretary and I looked at the Hansard report of this debate along with the Hansard report of the debate on the two Early Day Motions in the other place, frankly I would be appalled at the amount of evidence presented in both places of officials, on whom I rely for advice and for the preparation of legislation affecting those for whom I am responsible, not listening to or taking account of the expert views of people who know far more about those they are dealing with than they do. I would be extremely alarmed at the thought of the situation continuing like that, with no plan to implement the recommendations of the second review which I had commissioned into the conduct of detention. I am glad that we will see that review before the Recess.

I am saddened that there is no likelihood of these statutory instruments being withdrawn and I recommend that in the future, after the Shaw report has been published, the Home Office should carry out the consultation it has never done with the experts just to go through everything in order to make certain that the regulations are tight and ensure that caseworkers and doctors can implement them as intended, if not as laid down. I beg leave to withdraw the Motion.

Motion withdrawn.