Amendment 68

Illegal Migration Bill - Committee (3rd Day) (Continued) – in the House of Lords at 11:45 pm on 7 June 2023.

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Baroness Lister of Burtersett:

Moved by Baroness Lister of Burtersett

68: Clause 10, page 17, line 18, leave out from “paragraph” to the end of line 19 and insert “(a) of the definition of “relevant detention power”, after “paragraph 16(2)” insert “, (2C) or (2D)””Member's explanatory statementThe effect of this amendment is that section 60 of the Immigration Act 2016 (which limits the detention of pregnant women normally to 72 hours under existing powers of immigration detention) will apply to the new powers of detention created by Clause 10 of the Bill.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I will also speak briefly to Amendment 70, which is also in my name. Before I start, I wish to put on the record my protest at the fact that we are debating these important issues after midnight. It is disgraceful.

Noble Lords:

Hear, hear!

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

I am very grateful to the right reverend Prelate the Bishop of Gloucester, who sends her apologies that she cannot be here, but who asked me to underline her strong support. I am grateful to the noble Baroness, Lady Gohir, for her support for both amendments, and the noble Baroness, Lady Sugg, and my noble friend Lady Chakrabarti for each signing one of them. I am grateful to Women for Refugee Women and Medical Justice for their briefings on the amendments, but I feel we really cannot do them justice at this hour.

Amendment 68 does no more than restore the status quo ante, restricting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This restriction was introduced by the Immigration Act 2016 thanks to the strong opposition in your Lordships’ House to the detention of pregnant women.

Prior to that, there was no time limit and, although policy stated that pregnant women should be detained only in exceptional circumstances, in practice they were all too often detained in far from exceptional circumstances, and often for long periods. The Bill would return us to those dark days.

The government-commissioned review of the welfare of vulnerable people in detention by Stephen Shaw, a former Prisons and Probation Ombudsman, recommended the absolute exclusion of pregnant women from detention. That formed the basis of an amendment that I tabled in your Lordships’ House, which received strong support right through to ping-pong. Eventually, we accepted the 72-hour limit compromise proposed by the Government. In her Statement explaining it, the then Home Secretary Theresa May stated that

“the Government are clear that pregnant women should be detained only in exceptional circumstances”, and that to achieve a balance

“with the need to maintain a robust and workable immigration system … This new safeguard will ensure that detention for pregnant women will be used as a last resort and for very short periods”.—[Official Report, Commons, 18/4/16; col. 12WS.]

In his review, Stephen Shaw cited evidence from the Royal College of Midwives and others but explained that he had

“not sought further evidence that detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children. I take this to be a statement of the obvious”.

At the risk of stating the obvious, it is worth recalling that, during the 2016 debate, a number of noble Lords with medical experience voiced serious concerns about the impact of detention, not just on pregnant women but on their unborn babies. In particular, my noble friend Lord Winston drew attention to the science in which he himself was involved, which

“tells us clearly that the foetus at certain stages during pregnancy is extremely vulnerable to the environment of the mother”.

He warned that if a pregnant woman’s

“stress hormones … are raised, the effect on the foetus may be profound”, and that

“the Government need to recognise” their potential responsibility

“for a heritable effect on that child and possibly even on the grandchildren”.—[Official Report, 10/5/16; col. 1667.]

Today, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, the BMA and a range of maternity and refugee organisations have warned of the serious risk of harm that indefinite detention could create for pregnant women and their babies. The Children’s Commissioner has expressed support for this amendment.

The Independent Advisory Panel on Deaths in Custody, which I mentioned earlier, wrote to the Home Secretary on 17 March. Having expressed general concern about the increased risk of suicidality as a result of the extension of indefinite detention, it asked whether the Home Office had carried out a full assessment of the risks linked to the indefinite detention of pregnant women as well as children, and whether it would publish that assessment. More than two months on, no reply has been received. No doubt it will be sent in due course, so perhaps the Minister can provide an answer now and remind the Home Secretary that a proper reply is due to the panel.

In his follow-up review, Shaw noted that the introduction of the time limit had led to a welcome reduction in the number of pregnant women detained, a trend that official figures show has continued; we are now talking about single figures, compared with 99 in 2014. Why are the Government going back on their own policy?

At Second Reading, in response to concerns raised from around the House, the Minister stated that

“to date, there have been very few pregnant women in the small boats”, yet to exclude them from the detention powers

“would only serve to incentivise the people smugglers to” put more

“pregnant women … into flimsy boats”.—[Official Report, 10/5/23; col. 1924.]

Similarly, in a Commons Written Answer, the Immigration Minister warned against creating

“perverse incentives for evil people smuggling gangs to target particularly venerable groups”.

Echoing the ECHR memorandum, he further justified the move with reference to “appropriate accommodation” and “healthcare provisions”. That ignores not only the evidence on the inherent stress for pregnant women of being detained, which even the highest-quality healthcare would struggle to mitigate, but the evidence from organisations on the ground that antenatal and other healthcare in immigration detention is often very poor.

The Doctors of the World advisory group of people with lived experience of the asylum system raised particular concerns about standards of nutrition in detention centres for pregnant women and their unborn babies. The equality impact assessment bizarrely argued that because pregnant women could be considered more vulnerable, the removal of restrictions over their detention advances equality of opportunity, because it reduces the risk of their exploitation by people smugglers. This is Alice Through the Looking Glass thinking. Moreover, there is no evidence—that word again—that the 2016 legislation incentivised pregnant women to seek asylum, and the Minister himself acknowledged that there had been very few in the small boats drawn by the prospect of limits on their detention. Are the Government really willing to risk the health of pregnant women and their unborn babies on the basis of a theoretical fear of incentives, or “gaming the system”, as the Minister put it, for which there is no supporting evidence?

I turn to Amendment 70, which would protect children as well as pregnant women against the use of force, be it through the laying of hands on a child or pregnant woman or the use of restraint equipment to effect detention or removal. Again, the rationale for this amendment is the harm that the use of force can do to particularly vulnerable groups, the numbers of whom are likely to increase as the Bill’s removal of detention restrictions becomes law. According to Medical Justice, citing the Royal College of Midwives, pregnant women are at particular risk of developing serious conditions if subjected to the use of force, with implications for their unborn babies. It also cites the Home Office’s own use of force guidance, which acknowledges the serious physical and emotional harm that the use of force might do to children.

Current Home Office guidance does in fact place clear restrictions on the use of force on pregnant women and children. However, this policy was withdrawn for a period and was reinstated only following legal action. In practice, Medical Justice still sees disturbing evidence of the misuse of force in both detention and removals. It also quotes His Majesty’s Chief Inspector of Prisons’ recent report on short-term holding facilities, which gave examples of what it described as disproportionate, unacceptable and inappropriate use of restraint, including handcuffs on children. In his report published yesterday, he noted, depressingly, that:

“Across all three sites we saw no evidence of scrutiny or governance of the use of force or of lessons learned from poor practice”.

Home Office policy states that force should be used on children and young people only where it is necessary to prevent harm to the child or any individual present. Can the Minister give a commitment that this will continue to be policy? I ask because the fact sheet on the Bill and children suggests that force might be used on children if completely necessary, rather than only to prevent harm. Moreover, the fact sheet goes on to state:

“Using force on children in family groups may unfortunately be necessary if a family is resisting removal”.

But the use of force on a child to effect removal is not currently allowed. Will the Minister please explain why it will now be deemed acceptable to use force against children in circumstances where it has not previously been allowed under Home Office policy? This amendment simply puts into the law what is already supposed to be part of government policy, thereby creating a more robust statutory protection for two particularly vulnerable groups. I hope, therefore, that the Government will accept it.

Returning to Amendment 68, I fear that the Government’s obsession with deterrence, such that they intend to make life as grim as possible for all those who seek asylum in the UK through irregular means—not just small boats—regardless of vulnerability, means that they have lost all sight of humanity. I implore the Minister to think again and accept what is really a very small amendment but one that could make all the difference to the lives of pregnant women and their unborn children. I beg to move.

Photo of The Bishop of Southwark The Bishop of Southwark Bishop 12:00, 7 June 2023

My Lords, it is a great pleasure to follow the noble Baroness, Lady Lister, who has expertly outlined why these amendments are needed. My good friend the right reverend Prelate the Bishop of Gloucester has added her name in support of Amendments 68 and 70, and regrets she is not able to be here to give her support in person. I share her concern about the impact of detention on pregnant women in particular, impact which we know is considerable. Others will rightly draw attention to the impact on children, and the suggestion of the use of force against either group is unspeakable. His Majesty’s Inspectorate of Prisons advises that there

“is no safe way to use force against a pregnant woman, and to initiate it for the purpose of removal is to take an unacceptable risk”.

I turn now to Amendment 68, which is a preservation amendment. This simply asks that the Government maintain the status quo. In 2016, the Immigration Act introduced a 72-hour time limit on pregnant women’s detention, which saw the numbers detained drop from 99 in 2014 to just seven in 2021. It is alarming to think that we may see numbers rise, and the consequences are disturbing. According to research by Women for Refugee Women,

“women seeking asylum who are pregnant are an extremely vulnerable group. Many have experienced trauma such as rape, trafficking and torture, and have significant physical and mental health issues”.

I appeal to the Minister to consider also the well-being of the unborn child involved. The Royal College of Midwives has said:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.

Antenatal care and support provided to women who are detained has often fallen short of the care normally available to pregnant women.

Research by Medical Justice found that in Yarl’s Wood, women often missed antenatal appointments. Some had no ultrasound scans while detained, and women did not have direct access to a midwife and could not request visits. In recent years we have seen the devastating consequences of holding pregnant women in prisons. These facilities, including detention centres, are on the whole not set up to provide the necessary health and welfare oversight. This violates women’s dignity and puts lives at risk. The indefinite detention of pregnant migrant women, who are often extremely vulnerable and the victims of abuse and trafficking, is a very worrying and regressive move. The implication that force may be used against them, and against children, is beyond words. I hope wholeheartedly that the Committee supports these amendments and that His Majesty’s Government give them the consideration they so justly merit.

Photo of Baroness Gohir Baroness Gohir Crossbench

I thank noble Baroness, Lady Lister, for putting forward Amendments 68 and 70, to which I have added my name. I also support Amendment 76A tabled by the noble Lord, Lord Scriven. Let me address Amendments 68 and 76A first.

I made a strong case at Second Reading as to why pregnant women should not be detained. I followed this up with a letter to the Minister. In the letter, which I sent on 19 May, I acknowledged that the Minister has a difficult job in trying to tackle illegal migration but inquired about the following points. I asked about what the Minister had said in his opening comments at Second Reading. He said:

“More than 45,000 people came here by small boat last year. The overwhelming majority of arrivals were adult males under the age of 40.”—[Official Report, 10/5/23; col. 1781.]

This suggests that there were only a small number of women. However, I asked for clarification to understand fully the numbers. If the number was indeed small, then the number of pregnant women would have been negligible. I therefore asked also for evidence of how many pregnant women had entered the UK illegally and whether there had been sharp rise in the figures. I asked this because if not detaining pregnant women was going to act as a magnet, we would have seen the sharp rise suggested by the Government. I chased up a response yesterday and was informed that a draft letter has been prepared and is going through final checks, and I will be receiving it soon. I wonder whether there could be a response today to my points.

It seems obvious that there are probably only a few pregnant migrant women coming to the UK every year, but of course I am happy to be corrected on that point. If the Government are trying to make a case that not detaining them would act as an incentive for more smugglers to bring pregnant women into the country or act as a magnet, that does not stack up. What assessment has been made to arrive at that conclusion?

I also cannot imagine what safety risks a few pregnant women will pose if they are housed in the community, so I ask for clarification on the following points. How would pregnant migrant women living in the community make us less safe? It would definitely make them safer. Why is this Government’s response to pregnant migrant women so harsh, disproportionate and cruel?

Detention centres are unhealthy and unsafe environments for pregnant women, as I mentioned at Second Reading. I asked Women for Refugee Women for cases of pregnant migrant women who had been detained prior to 2016. When I read the cases sent to me, I noted the following commonalities. These women were not believed when they said they were not feeling well. They had delayed maternity care. Miscarriage came up, as did poor nutrition. They were given medication without really knowing whether it was suitable for pregnant women. Poor mental health, self-harm, flashbacks and PTSD were mentioned. All of this also impacts unborn children and newborns.

Given the vulnerability of pregnant women and children, I support Amendment 70. Force should never be used to effect detention or for removal. Any use of force, even if it is considered mild, will risk harm to the mother and unborn child because each pregnancy is unique, and there may be pregnancy complications that are not apparent. The use of force risks miscarriage, waters breaking and the risk of infection, premature labour, stillbirth and trauma. It goes without saying that to safeguard and protect children from harm, force should also not be used on them. The only time reasonable force can be justified is to prevent harm to the person themselves or to another person. It should not be done for the purposes of detention and removal.

Your Lordships may be wondering why I am so worried about the use of force. The use of force in law enforcement could potentially include handcuffing, the use of a baton, the use of dogs, the use of irritant spray, body restraints, spit hoods, Tasers, and aiming firearms. The Government have a duty to safeguard the most vulnerable in society, so I hope they carefully listen to our concerns today.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 12:15, 7 June 2023

Good morning, my Lords. I hope all Members of the Committee—it is a large group; larger than usual, for which I give credit to the Committee and to Members opposite in particular—will remember 8 June 2023. I will always remember where I was this morning, and I hope that other noble Lords will too, because this was the morning when we began debating whether detention and force are appropriate for pregnant women and small children.

I am very privileged to follow the noble Baroness, Lady Gohir, with her various well-put medical and other reasons why it is not a good idea to use force against pregnant women. It seems that this is now necessary in the context of debating amendments to the Bill. It would seem that there is the edge of depravity, and then there is the abyss. In the last group, we talked about detention. We now take it to its further conclusion, because in the end, a consequence of detention will sometimes be force. It is as well that we confront that, and confront it in the case of both children and, in this example, pregnant women.

Whatever our views about the basic policy here, I rather agree with the noble Baronesses in the previous group and with the speeches we have just heard that it would be appropriate for the Government to think again about this group of vulnerable people in particular, considering all the reasons that were given. Surely, whatever is said about deterrents and so on, there can be some concession to humanity, please, in relation to children and pregnant women. That will not hurt the signalling and the deterrents and so on. We cannot go on like this—and I do not just mean that we cannot go on at 12.20 am. When we were younger, hey, we used to go on all night, so we can go on all night in here; this is how we get our kicks in the Committee. However, we cannot go on degrading ourselves and our values by suggesting that there is no difference between a child or a pregnant woman and an adult, and that everybody is illegal. We need to make some restraints, just for decency, for our own sake.

Photo of Lord Scriven Lord Scriven Liberal Democrat

My Lords, it is ironic that we are talking about detention when the Government Front Bench is trying to detain us here. What we are trying to do is our job of sensibly and calmly dealing with a Bill that has huge potential for the liberty and lives of some of the most vulnerable people in the world. It is absolutely disgraceful that, when the noble Baroness, Lady Chakrabarti, was talking about staying here all night, some on the Benches opposite, including the Government Chief Whip, thought it was funny and amusing. It is not funny and amusing to be told that we have to stay here until goodness knows what time to do our job because the Government Benches wish to rush this through at any cost as a red-wall, red-meat Bill, rather than allowing us the serious job that we have to do as Members of this House. It is an absolute disgrace.

Now that I have got that off my chest, I will speak to my Amendment 76A. It is not a probing amendment but a clear amendment that women who are pregnant should not be held in immigration detention. I see no reason for that. The noble Baroness, Lady Lister, pointed out what the equality impact assessment says on pregnancy and maternity—it is absolutely enlightening:

“Data on pregnancy and maternity in relation to people who enter the UK illegally is not available”.

It is not available—there is no data. They do not know the numbers and therefore they do not know what the impact is. It continues,

“it is therefore difficult to categorically establish whether there will be indirect discrimination”.

It is not just hard to determine whether there is indirect discrimination; because of the lack of figures it is absolutely impossible to determine what the effect will be of the primary part of this legislation and whether it will act as a deterrent.

I am sure that that is what the Minister is going to tell us: that there is no data or evidence available. As the Minister said on Monday, on all the proposals:

“Obviously, as these provisions are not in force, there is no evidence of the impact of these measures. The noble Lord appears to require me to look into a crystal ball”.—[Official Report, 05/6/23; col. 1175.]

When the Minister gets up at the Dispatch Box, if he trots out the ridiculous statement that locking up pregnant women will somehow act as a major deterrent to people coming here, both the equality impact assessment and what the noble Lord, Lord Murray, said on Monday show that that is not the case.

It is for those reasons—the lack of evidence, the lack of understanding of what the impact will be, and, as other noble Lords have said in the debate, the impact it will have on both the pregnant woman and the child—I believe there is no case in a modern, civilised country to have an immigration policy position of putting pregnant women in detention.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, in 1979, when I was a young Member of another place, the then Conservative Government regularly kept us there all night. When you are younger, you are quite happy to do that but I suspect it would be better—and knowing how reasonable the Leader of the House and the Government Chief Whip are—if we could schedule our proceedings to include at least one extra day to consider this very important Bill, but also maybe to have a morning sitting if necessary to enable those of us who are not quite as young as we once were to ensure that we can focus properly on these very important questions.

I made common cause with the noble Baroness, Lady Lister, in 2016 and it was to the credit of your Lordships’ House that, after some ping-pong and debate between both Houses, we were able to ensure that the law was changed to introduce these restrictions on the detention of pregnant women. Similarly, the decisions that were taken about children were to the credit of this House. To see these things being rolled back brings no credit to any of us and I really hope that the Minister, when he goes away from our proceedings tonight and talks again to his officials and to the Secretary of State, will recognise the strength of feeling that has been expressed in the debate already, and that the very important points that my noble friend Lady Gohir made in her excellent speech will be taken into account.

The detention of pregnant women is currently restricted, as we have heard, to 72 hours. That limit would be specifically disapplied in respect of those detained because they are or may be subject to the Clause 2 removal duty. As the Bill stands, a pregnant woman could be detained for any period—I repeat: any period—considered “reasonably necessary”. Prior to 2016, the noble Baroness, Lady Lister, and I argued that it was unconscionable that there was no time limit on immigration detention for pregnant women, leading to some of them being detained for weeks, even months, on end. That, inevitably, put pregnant women and their unborn babies at risk.

The Royal College of Midwives says:

“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.

Stephen Shaw, the former Prisons and Probation Ombudsman, mentioned earlier by the noble Baroness, Lady Lister, was emphatic. He said:

“That detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children … I take to be a statement of the obvious”.

Back in 2016, Medical Justice told Parliament that the level of care for pregnant women

“falls short of NHS equivalence and the National Institute for Health and Care Excellence (NICE) standards”.

Are we seriously going to turn the clock back to those bleak times? Some of the women who will be affected will have experienced barbaric treatment, including rape, torture and trafficking. To forcibly return such women will be traumatic beyond belief for them. It will endanger their lives and the lives of the babies in their wombs, and we have no business doing it. That is why I support Amendment 68, and even at this late hour I hope that many of your Lordships on all sides of the Committee will support the noble Baroness, Lady Lister.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 12:30, 7 June 2023

My Lords, I begin with an apology to the noble Lord, Lord Scriven, because, had I spotted Amendment 76A, I would certainly have attached my name to it. I judge from its numbering that it was a relatively late arrival. Having addressed the detention of pregnant refugees at Second Reading, I saw that Amendments 68 and 70 had full, cross-party and non-party support—including from the Lords spiritual—so I could not attach my name to them. I certainly would have done so otherwise. The case for all these amendments—certainly for not making things any worse than they are now—has already been overwhelmingly made.

The noble Baroness, Lady Chakrabarti, took us gazing into the abyss; I am afraid that I am going to look even further into the abyss. I have specific questions for the Minister. Throughout these many long hours of debate, we have heard again and again that the Government are determined to remove people with great rapidity—that is, that they are going to detain them for just a few days and then remove them. We have all heard the expressions of doubt about that. I want to ask some questions about the Government’s intentions for the removal of pregnant refugees.

I have looked at the NHS guidance on travelling when pregnant; for the assistance of the Minister, the website is It says that flying during the first 12 weeks of pregnancy is risky because of the risk of miscarriage. It says that most commercial airlines accept pregnant travellers up to 36 weeks if it is a single pregnancy or up to 32 weeks if it is a multiple pregnancy if the pregnancy is uncomplicated and the pregnant person is in good health. This advice also notes that, in the post-partum period, the risk of deep vein thrombosis is significantly elevated. My question for the Minister, because I think that it needs to be raised in this context, is this: is it the Government’s intention to remove, presumably by flying, pregnant refugees, risking their health and that of their unborn babies?

Photo of Baroness Sugg Baroness Sugg Conservative

My Lords, I have co-signed Amendment 68, which, as we have heard, would keep the existing protection of a 72-hour time limit on the detention of pregnant women for immigration purposes. I appreciate that the Minister will make a similar closing speech to the one for the previous group, but I want to make some different, practical points on pregnant women specifically. I believe that there is a case for special treatment here.

In our debates on previous groups, my noble friend the Minister warned against introducing loopholes that could be exploited. I do not believe that that will be the case here. This is a narrow amendment. It does not seek to exempt pregnant women from the other provisions in this Bill, such as the duty to remove. It simply ensures that their and their babies’ health will not be put at risk by being detained with no time limit.

There is no evidence to support the suggestion that maintaining the time limit will result in more pregnant women crossing the channel. Women’s groups and experts working in this area do not believe that it will increase the number of pregnant women making these journeys, so I do not believe that there will be an incentive effect. I am not really clear on the reasoning behind that argument. I do not think anyone is suggesting that this will incentivise women to get pregnant so that they can claim asylum. Nor will women take the decision to put themselves and their unborn baby at risk of a dangerous crossing and eventual deportation just because they will not be detained on arrival for more than 72 hours.

If the broader measures in the Bill work as the Government intend and people are swiftly removed to another country, we will not see people traffickers seeking out pregnant women to make the crossing, exploiting a loophole, because they will not be exempt from removal. The risk of the very small number of people on whom this will have an impact absconding is very low, given the desire and need for healthcare when pregnant. Further, where there is a real risk of absconding, Section 60 allows for detention to be extended with ministerial authorisation.

Despite the same arguments being made when this issue was debated in 2016, the 72-hour time limit placed on pregnant women’s detention has not had an incentivising effect on women claiming asylum. Unfortunately, the Home Office does not collect specific statistics on the number of pregnant women claiming asylum, but the number of women claiming asylum annually prior to the time limit was about 7,000. This figure has stayed broadly the same post time limit; there has not been any increase.

Secondly, there is the argument that there will be sufficient protection for pregnant women thanks to existing or updated guidance. I do not believe that that will be the case either. The existing “adults at risk” level 3 does provide some guidance but, as we saw before the Immigration Act 2016, with just guidance, pregnant women were being detained on a far more routine basis than they should be.

During the passage of the Immigration Act 2016, the original proposition was for pregnant women to be protected through guidance but ultimately it was recognised that that just would not be robust enough, and we saw the introduction of the time limit. I appreciate what my noble friend the Minister said in the previous group about updating the guidance following this Bill, but the gap between policy and practice was really only closed through the introduction of a clear time limit in primary legislation which reduced the elasticity of or room for interpretation of guidance. This protection should remain in primary legislation.

There is widespread support for this amendment from across this House, from the other place and from organisations such as the End Violence Against Women coalition, which is made up of 143 specialist women’s support services and experts, from Refuge, the largest domestic abuse organisation in the UK, from medical professionals, and from the Royal College of Obstetricians and Gynaecologists. I will not detain your Lordships by reading out their supporter quotes but, believe me, they are very supportive. I am happy to share them at a more appropriate time.

This is a narrow amendment that would impact just a small number of vulnerable women and keep the protection against detention that pregnant women currently have. It would not create loopholes as it would not exempt women from the duty to remove. The known negative impacts of detention on pregnant women outweigh the un-evidenced—and in my view, incorrect—argument that this will incentivise women to cross in small boats.

This amendment is about protecting women, not putting them at further risk. It would maintain current protections that have been widely acknowledged as working well. If my noble friend the Minister still believes the current time limit should be removed, I would welcome an explanation of the specific reasons for that. I ask him to take into account the widespread support for this narrow amendment and to consider its merits ahead of Report.

Photo of Lord German Lord German Liberal Democrat

My Lords, this has been another interesting debate in which there has been one side only, and we face a series of debates where we are looking at fact versus forecasting. All of the speakers who have entered this debate in this short and very narrow area of work have been clear about the issues, which are evidenced—the health and well-being of pregnant women, the effect on unborn children, the dangers of restraint, which have been very well explained.

We are in exactly the same position as we were on the last group. We are asked to make a decision in this Committee based on unevidenced forecasting—in fact, we heard the Minister say earlier that he cannot be expected to look into a crystal ball. That is exactly what the Government are doing here, against all the evidence.

If you think about the number of organisations that have been referred to in this short debate, we are not talking about a small, narrow area of influence; we are talking about huge numbers of organisations representing women throughout this country, human rights and every other sphere you can imagine, believing that this is the wrong way to go. It is the wrong way because we do not have any evidence that it will do the job the Government want it to do.

The Government should stop their crystal ball-gazing to which they directed our attention earlier and concentrate on the evidence they have given. If they cannot provide the evidence themselves, listen to the evidence of the world around us.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, one of the major items in the Bill is the extension of the 72-hour detention of pregnant women. Research carried out in Yarl’s Wood in 2014 found women in detention there often missed antenatal appointments, had no ultrasound and did not have direct access to a midwife.

In a government-commissioned review of immigration detention in 2016, Sir Stephen Shaw stated that

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn child and I take this to be a statement of the obvious”.

That point was made by the noble Lord, Lord Alton of Liverpool. It was after this that the 72-hour rule was implemented. It was done for a reason, and to undo it would put women and unborn children at risk of serious harm. The actual number of pregnant women in detention is low. There were nine in 2022, so I would argue—and so, I believe, would other noble Lords who have taken part in this debate—that we are talking about a low number of children. The Government’s argument that somehow, the amendments would provide an incentive are difficult to understand.

However, to the women themselves, who are pregnant, it makes a huge difference. That is accepted by experts and by every lobby group that has written to noble Lords regarding this narrow amendment.

If I was to give a prize for the best speech of this group I would give it to the noble Baroness, Lady Sugg. Her speech was very cogent and well argued. On the other hand, the prize for the most impactful speech would go to my noble friend Lady Lister, who gave a powerful and angry speech. She was also very angry that we are having this debate at this time of the morning. I hope that the Minister will hear the unanimity of view that has been expressed by all noble Lords taking part in this short debate.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, this group deals with the detention of pregnant women and the use of reasonable force to effect the detention and removal of children and pregnant women.

Amendments 68 and 76A deal with the detention of pregnant women. Before getting into the specifics, it is worth briefly reiterating some general points made by my noble friend Lord Murray when he responded to the previous group. Our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal from the United Kingdom. The scheme is designed to be operated quickly and fairly, but holding people in detention is necessary to ensure that they are successfully removed under the scheme. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants, save unaccompanied children, back to their home country or to a safe third country will, we calculate, send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people smugglers facilitating their passage across the channel in small boats on the false promise of starting a new life in the United Kingdom. The only way to come to the United Kingdom for protection will be through safe and legal routes. This will take power out of the hands of the criminal gangs and protect vulnerable people.

I am happy to repeat for the benefit of the noble Baronesses, Lady Lister of Burtersett and Lady Chakrabarti, the noble Lord, Lord Scriven, and my noble friend Lady Sugg that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes. I assure the Committee that pregnant women who have arrived illegally will not be removed from the United Kingdom when, based on medical assessments, they are not fit to travel. I offer that assurance to the noble Baroness, Lady Bennett of Manor Castle.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

Before the Minister continues, can he tell me where that will appear in writing? An assurance in the Committee at 12.43 am is one thing, but where will that assurance be written down?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

It will be in Hansard, the official record.

The document from which the noble Baroness, Lady Bennett, quoted, referring to guidance from the NHS website, provides that, with the proper precautions, most women can travel safely well into their pregnancy. However, in any event, we will remove only persons who are fit to travel.

There has never been a complete bar on the detention and/or the removal of pregnant women, such as Amendment 76A seeks to provide. The noble Lord, Lord Alton of Liverpool, referred correctly to the situation as presently advised, with a 72-hour period and a seven-day maximum detention thereafter. In answer to the noble Lord, the right reverend Prelate the Bishop of Southwark, and other noble Lords, that will continue to apply to women who have not arrived illegally on these shores.

Under the Bill, detention is not automatic. The Bill provides power to detain, and the appropriateness of detention will be considered on a case-by-case basis. We expect that a woman who is in the later stages of her pregnancy and who cannot be removed in the short term would not be detained, but instead released on immigration bail. That matter would of course be assessed by the body hearing the application.

As my noble friend Lord Murray of Blidworth advised the Committee earlier, and in relation to points raised by my noble friend Lady Sugg, we already operate our adults at risk policy for women who are detained in the earlier stages of pregnancy, which recognises pregnant women as a particular vulnerable group. For all cases in which a pregnant woman is being detained for removal, the fact of her pregnancy will automatically be regarded as amounting to level 3 evidence under the adults at risk policy, and the pregnancy will be afforded significant weight when assessing the risk of harm in detention. This means that a woman known to be pregnant should be detained only where the immigration control factors that apply in her case outweigh the evidence of her vulnerability—in this case, the evidence of her pregnancy. Such control factors at level 3 are where removal has been set for a date in the immediate future or there are public protection concerns. While in detention, pregnant women will receive appropriate healthcare provision.

The noble Baroness, Lady Gohir, referred to the letter she has been promised. I am assured that it is in the process of being drafted. It will proceed under the name of my noble friend Lord Murray of Blidworth and will be with her soon.

Along with all other detained persons, it will be open to pregnant women to apply to the First-tier Tribunal for immigration bail after 28 days and it would be open to the Home Secretary to grant such bail at any time. An application for a writ of habeas corpus may be made at any point once an individual is detained. An equivalent procedure operates in Scotland by means of an application for an order for suspension and liberation to the Court of Session.

Amendment 70 would, in effect, prohibit the use of reasonable force to effect the detention or removal of either children or pregnant women. While I recognise the sentiment behind this amendment, we need to recognise that using control and restraint on children in family groups or pregnant women may, unfortunately, be necessary if a family is resisting removal. At the moment, our policy regarding children and pregnant women is that reasonable force may be used to prevent harm to individuals and others. However, we judge it not right that a family can prevent their lawful removal from the United Kingdom simply by leaving a room or by refusing to walk to the appropriate transport.

At this point, it is worth while expanding on what we mean by the use of reasonable force. The expression is fully and widely understood within the legal profession. I understand the concerns being raised here and it may help if I offer more explanation of what is meant by that expression or the use of control and restraint on pregnant women and children. It may involve no more than placing hands on the person; a typical example is what is known as a guiding hold, which may be used safely to escort a person by placing one hand over their wrist and the other on their upper arm.

It is and will continue to be the case that the use of force must be reasonable in the circumstances, must be the minimum amount required, must be an absolute necessity and must be proportionate. Officers are therefore trained to use it as a last resort only when other methods of engagement are not viable.

Again, the noble Baroness, Lady Gohir, in her submission to the Committee, described forms of the use of force which are extreme in comparison with what would be deployed in foreseeable circumstances. If I may, it is somewhat analogous to the discussions earlier on in the context of the detention provisions: we heard what your Lordships had to say about the conscription—I seem to recollect that that was the expression—of shipmasters, train managers and others into the service of the Home Secretary acting in these capacities. It was worth while for my noble friend Lord Murray of Blidworth to remind the Committee that detention can be no more than simply refusing to open doors. Force need not equate with violence. But we judge that it is appropriate that persons should not be able to thwart the immigration system simply by refusing to co-operate.

Where we are reviewing our policies on control and restraint, we will pay particular attention to ensuring that appropriate safeguards are in place, along with suitable training, officer accountability and reporting. Again, I think it is worth mentioning that these control and restraint techniques are in a constant process of review and evaluation, not only by police officers but also by others such as mental health nurses, prison officers, immigration officers and officials such as will receive such training for the purposes of the Bill. We will be consulting the children’s commissioners regarding changes to our current policy.

I conclude by reminding the Committee that the challenge we face in addressing the current levels of illegal entry into the United Kingdom calls for a new and radical approach. That means having to re-evaluate some legislation passed in recent years with the best of intentions. The challenges that we face now are different in kind and scale since Section 60 of the Immigration Act was enacted. Of course, pregnant women must be properly cared for while they are in detention and will be detained only in suitable accommodation with appropriate healthcare provision, but the fact that they are pregnant cannot of itself act as a bar on detention under the Bill. On that basis, I invite the noble Baroness to withdraw her amendment.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour 12:45, 7 June 2023

My Lords, first of all, I thank all noble Lords who have spoken. All, apart from the Minister, spoke in support of the amendment. I am very grateful to them for staying until this ungodly hour and not allowing the Government to chase them off, in effect, through tiredness. I know that others have not spoken, but I have felt their support anyway. People are nodding, and I thank them. I know that others who cannot stay this late have had to leave.

My noble friend Lord Ponsonby remarked on my anger that we are discussing this at such a ridiculous time. Yes, I am angry about that, but I am also angry because, as the noble Lord, Lord Alton, set out very clearly, we are having to refight the battles that we fought in 2016 at some length in this House and won. It is so depressing to have to put the same arguments yet again, because the Government and Theresa May accepted them then, and we reached a compromise. That is why, although in my heart I agree with the noble Lord, Lord Scriven, because that is what I argued for in 2016, with my head I say that we have to just try to get back to where we were. There is no point trying to go further, I am afraid, although I accept what he said in principle.

I should also note that there are a whole lot of other people here who probably would not normally sit in on our Committee proceedings, and I hope they have learned something. I hope they have learned through having to listen to what we are doing to pregnant women—what their Government are doing to pregnant women. I hope they will think about it. Some of their colleagues on the government Benches might have words, perhaps, afterwards, because as my noble friend said, the noble Baroness, Lady Sugg, made a very powerful case.

I thank the Minister for his response, but it was utterly disappointing. He utterly failed to engage with what his noble friend said about the vacuity of the incentives argument, and he had no other argument to put. There is no case, really, because, as she made clear, that argument does not stand up. It was very depressing and disappointing that there was no case.

I am also disappointed that a number of the questions I asked were not answered. I am not going to press them now— it is nearly 1 o’clock in the morning.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I apologise to the noble Baroness. Any oversight was entirely a failure on my part. I will review the record and revert to the noble Baroness in writing, if that is acceptable.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

It is perfectly acceptable. I was just going to suggest that the Minister do that. I do not blame him at all, because I do not imagine he is that keen on arguing this out at 1 o’clock in the morning either.

We will return to this at Report—we have to. As a number of noble Lords said, this is a narrow amendment that does not drive a coach and horses through the whole Bill, much as I hate the Bill. It would not cost the Government anything to concede to this amendment before Report, rather than forcing us to come back then and go through the whole thing again, voting for the health of pregnant women and their babies. For now, however, I beg leave to withdraw the amendment.

Amendment 68 withdrawn.

Amendment 69 not moved.

Clause 10 agreed.

Amendments 70 and 70A not moved.

Clause 11: Period for which persons may be detained