Amendment 139A

Illegal Migration Bill - Committee (5th Day) (Continued) – in the House of Lords at 7:00 pm on 14 June 2023.

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Baroness Hamwee:

Moved by Baroness Hamwee

139A: After Clause 60, insert the following new Clause—“Secure reporting for victims of crime(1) The Secretary of State must, by regulations, make provision for the prohibition of automatic sharing of personal data of a victim or witness of crime for the purposes of section 2(1).(2) In section 20 of the Immigration and Asylum Act 1999 (power to supply information etc to Secretary of State), after subsection (2B) insert—“(2C) For the purposes of section 2(1) of the Illegal Migration Act 2023, this section does not apply to information held about a person as a result of the person reporting criminal behaviour which they are a victim of or a witness to.”” Member's explanatory statementThis new Clause would prevent immigration data being shared for the purposes of section 2(1) about a victim or witness of crime who reports an offence. This is to ensure victims are able to approach the authorities for assistance without fear of removal under section 2(1) as a result of that contact or resultant data sharing with immigration enforcement.

Photo of Baroness Hamwee Baroness Hamwee Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

Amendment 139A is in the name of the noble Lord, Lord Alton of Liverpool. The noble Lord, Lord Carlile of Berriew—who has managed to escape for the moment—has added his name to it, as has the right reverend Prelate the Bishop of London.

This amendment seeks to prevent immigration data being shared for the purposes of Clause 2(1), under which the Secretary of State must make arrangements for the removal of people who meet the four conditions. I am very happy to have my name to this—I would not have signed it if I were not happy—because the issue of exemption from the Data Protection Act is one which my noble friend Lord Paddick and I have raised many times since we debated the then Data Protection Bill. The exemption from restrictions on sharing data for the purposes of immigration enforcement or immigration control—I do not recall which but it amounts to the same thing—is a very wide exemption.

The concern here is to ensure that victims can approach the authorities for assistance without the fear of removal as a result of that contact, or of data being shared with immigration enforcement. Noble Lords have frequently made the point about people without secure status having more confidence in smugglers and traffickers than they do in the authorities. The traffickers’ threats are not ones that they will take lightly; they control their victims, notwithstanding that the victims have “escaped”.

We have a number of other clause stand part notices, all amounting to the fact that we oppose the whole of the Bill. The clauses which are listed in this group are not substantive clauses; in other words, they are not about policy. I will mention just one, which is about financial provision. I am alarmed—we all are—at how much will be spent on what we consider to be the likely costs of the policy. I will not go over them again. We are firmly opposed; I do not think I need to spend time re-emphasising that point. I beg to move Amendment 139A.

Photo of Lord German Lord German Liberal Democrat

My Lords, I have two sets of amendments in this group. First, Amendments 142, 143, 144 and 147 seek to examine how the Brook House inquiry findings can influence the way in which the Bill will be enacted. Secondly, Amendment 139FE seeks to examine the devolution issues, which I will be looking at specifically through the legislation governing Wales and, very specifically, the Act of Parliament which I want to test the Government on.

First, my intention is to find out how the Government intend to deal with the recommendations of the Brook House inquiry when it reports and apply them to the changes that it will necessitate in the implementation of the Bill. Under the Inquiries Act 2005, the Brook House inquiry into mistreatment and abuse in breach of Article 3 of the ECHR at Brook House immigration removal centre was instituted in November 2019, following a judicial review proceeding. The inquiry has heard extensive evidence, and it is the first public inquiry into the mistreatment of those detained under immigration powers. The conditions of that detention provided a unique opportunity for public scrutiny of and accountability for detention practices and culture.

The inquiry, which we understand will be published in late summer, has heard evidence from detained persons, detention officers, healthcare providers, G4S—which was the contractor responsible for Brook House at the time—employees, Home Office officials, members of the independent monitoring board and His Majesty’s Inspectorate of Prisons. The inquiry also appointed and heard from three experts to address the key issues of the use of force, the institutional culture, and clinical care provision and safeguards. It also examined a vast amount of documentary material and video footage.

The evidence that has emerged in what has already been given to the inquiry in public session has uncovered the misuse of force, systemic failures in the operation of clinical safeguards, prison-like practices and policies, dehumanisation, racism and a lack of accountability. The aim of the inquiry was:

“To reach conclusions with regard to the treatment of detainees where there is credible evidence of mistreatment contrary to Article 3 ECHR … and then make any such recommendations as may seem appropriate.”

So, central to the terms of reference is examining the extent to which any Home Office policies or practices, or clinical care issues within detention, caused or contributed to any identified mistreatment.

The chair is due to publish the report, with its findings and recommendations, in late summer. My concern is that the Government are proposing a dramatic expansion of the powers to detain without knowing what this inquiry will recommend. In response to an earlier question, the Minister told us that two new centres would be opening, which I understand will represent 1,000 new places for detention. Given the extent of the evidence to the Brook House inquiry, there is bound to be an opportunity to learn, to improve the detention estate and to see whether improvement is at all possible.

This amendment, although it seeks to halt bringing the provisions of the Bill into force until the analysis of the abuse is revealed and the recommendations are made, has also received the support of the Bar Council, which

“considers that it would be wise to await the outcome of that inquiry before considering whether the Home Secretary should be afforded yet more extensive detention powers subject to even less judicial scrutiny when there are serious, repeated and long-standing concerns about the conditions and treatment of those detained”.

Have the Government and the Home Office considered how they might use the recommendations of this inquiry and how they might impact on the Bill?

I now move on to the second set of amendments, which relates to devolution issues. I have concerns and I will express them through the devolution arrangements which have been made with the Senedd, the Welsh Parliament. I use the term “Senedd” because that is in law in this country. Section 107 of Part 4 of the Government of Wales Act, by which Ministers of the Government are bound to act, says:

The Senedd may make laws, to be known as Acts of Senedd Cymru or Deddfau Senedd Cymru”, but this part of the Act

“does not affect the power of the Parliament of the United Kingdom to make laws for Wales”.

The legislation adds:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Senedd”.

That is the law of the land—this land, the United Kingdom—in the Government of Wales Act, passed in 2006.

Subsequent to that Act, a guidance note was agreed by the Cabinet Office—by Ministers, but under the arm of the Cabinet Office of the United Kingdom—the two Parliaments, the two legislatures, on how the matters addressed in that part of the Act of Parliament would be dealt with. I am sure that Ministers are well aware of this detailed devolution guidance note. There are five tests, and the first stage is to apply those tests to see whether the legislative competence is indeed with the Senedd. In the process, the Welsh Government have laid two legislative consent memoranda in relation to the Bill. Both are passing through the Senedd at this time. They have been referred by the Llywydd—the Speaker—to four committees of the Senedd, which have been asked to report their findings to the Speaker by tomorrow. That will be followed by a Senedd debate on those legislative consent memoranda.

The legislative consent memorandum refers to the Social Services and Well-being (Wales) Act 2014, which received Royal Assent in September that year and to which I believe the Government intend to enact changes. I have in front of me the section of that Act that deals with looked-after and accommodated children, which I believe the Welsh Government are concerned that the Government here are going to change. I have been through all 45 pages of this section of the Act, and I am sure the Ministers have required their officials to do the same.

My questions are about the devolution guidance memorandum. Have the Government followed the Cabinet Office guidance on this matter? In other words, have they determined that legislative competence was appropriately given—it has been given Royal Assent anyway—to Part 6 of the Social Services and Well-being (Wales) Act 2014 in respect of looked-after and accommodated children? If the UK Government believe that was properly enacted, in order to follow their own guidance they should seek to have legislative consent memoranda on areas in which they choose to make changes.

The clause in this Bill gives huge power to the Government not just to enact changes by regulation but to change primary legislation, which this Act is, without any description of what changes they are looking for. The Minister will know that I asked him why an earlier clause in the Bill did not apply to Wales, Scotland and Northern Ireland but applied only to England. Is it the intention that the clause that is described for England only, which we debated earlier, is a clause that the Government seek to apply to Wales, Scotland and Northern Ireland? Is it intended to try to change the law of the land in Wales about looked-after and accommodated children?

There are 45 pages of legislation in place in Wales, where the rules are absolutely clear about how children will be looked after and accommodated, and the position in England will be quite different if this legislation remains as it is. A change to the legislation on looked-after and accommodated children should be accompanied by a process with the Welsh Government and the Senedd, described as one of negotiation and discussion, and then the legislative consent memoranda should be achieved.

I do not know whether the two legislative consent memoranda that have been laid before the Senedd were at the request of Home Office officials. Perhaps that can be made clear to us so that we can understand those matters. Fundamentally, I have raised this issue because it is about respect: respect for the devolution settlement and for the rights of the people of Wales, through their elected Government and elected Parliament, to be assured that their thoughts on these matters will not be overturned.

This section does not mention asylum anywhere but talks generally about all children who are being looked after and accommodated. There is no mention of asylum seeking or of families of asylum seekers whatever. These are the rules, and I would like to ensure that if the Government here intend to change them, they do it in accordance with the Government of Wales Act and the section of it that tells us that the Government will not normally act in these matters unless it is done with the consent of both parties.

Photo of The Bishop of Durham The Bishop of Durham Bishop 7:15, 14 June 2023

My Lords, I will speak first to Amendment 139A, to which my right reverend friend the Bishop of London has added her name, and then I will turn to Amendment 139B in my name. I remind the Committee of my interests as laid out regarding RAMP and Reset.

As we have heard, Amendment 139A would prevent data about a victim of or a witness to a crime being automatically shared for the purpose of immigration enforcement. My right reverend friend the Bishop of London sponsored a similar amendment during the passage of the Domestic Abuse Act, and this issue remains hugely important.

Imkaan reports that more than 90% of abused women with insecure immigration status had their abusers use the threat of their removal from the UK to dissuade them from reporting their abuse. It is deeply disturbing that any person would be deterred from reporting a crime that they have been subjected to or have witnessed because they believe that their data will be passed on to immigration officials for the purposes of immigration control. This is especially pertinent for a domestic abuse victim, a modern slavery victim, someone who has been trafficked or someone who has been subject to violence.

In the context of this Bill, a lack of safe reporting pathways would be a major hindrance to the Government’s intent to “go after” the people smugglers who blight communities and destroy lives. Without the assurance of secure reporting to allow victims to come forward and report crimes committed against them, how will the Government ensure that they go after the perpetrators?

As well as a need for prosecution, we have a responsibility to victims. The Istanbul convention, to which the UK is a signatory, states in Articles 5 and 59 that victims of violence must be protected irrespective of their immigration status. It is crucial that we take all possible steps to comply with this and ensure that the right of every person, especially women and girls, to live free from violence is protected.

Since the passage of the Domestic Abuse Act, there has been a call for the overhaul of laws and policies on police data sharing with the Home Office. The Government committed to reviewing this, but stopped short of committing to a firewall. Many dedicated groups have been campaigning on this issue for many years. The House of Commons Justice Committee, in its pre-legislative scrutiny of the draft victims Bill, agreed with them:

“We call for an immediate end to the sharing of victims’ and witnesses’ data between the police and the Home Office for immigration enforcement purposes and the introduction of a complete firewall for those groups”.

What is set out in Amendment 139A would not prevent data sharing between services where it is required—for example, in healthcare—but would prevent data sharing for the purposes of Section 2(1) of this Bill, namely removal. At a time when trust in the police force is low, especially for minority groups, we must consider the impact of the Bill on the wider community and ensure that, when someone is subject to or a witness of a crime, they can report it without fear.

I turn to Amendment 139B in my name. I am grateful to the noble Baroness, Lady Lister, and the noble Lord, Lord Scriven, for their support. I argue that this amendment is a common-sense proposal that offers the Government a procedure to ensure that statutory oversight of detention facilities and standards is maintained, without altering the Secretary of State’s power to detain on, undeniably, an extensive scale. The Bill establishes a comprehensive detention regime that many of us expected to have been consigned to history. It moves the system away from an administrative process to facilitate someone’s removal to a wider system of incarceration intended to deter asylum seekers from travelling to the UK. Although this signals a major transition in government policy, there is very little detail on the standards, safeguards or protective obligations on the Home Office that there will be when providing detention accommodation. In fact, Clause 10 grants the Secretary of State the power to detain people “in any place” that she “considers appropriate”.

I am grateful to the Minister for explaining that the Detention Centre Rules 2001 will be updated in light of this Bill and that all immigration removal centres must operate in compliance with the rules, including any additional sites that are opened. But the Government will appreciate that these standards are not in the Bill and, given that there is very little oversight for the potential mass detention of people, it would be unfathomable to proceed with these provisions without a detention inspection regime on a statutory footing.

This is all the more important given the fact that this legislation overturns the long-held common-law principle that it is for the courts to decide whether the detention of a person is for a period that is reasonable or even justified in principle. The Secretary of State’s duty to detain does not discriminate and, in the absence of any return agreements, thousands of people—including children of all ages, pregnant women, victims of trafficking and those who are disabled—may be detained at the discretion of the Home Secretary for an unrestricted duration. I am afraid that I am not reassured by Ministers saying that habeas corpus provides enough legal protection to challenge detention, as it concerns only whether there is a power to detain, not whether the power to detain was exercised lawfully or is reasonable. Am I not correct in this observation?

Under Section 5A of the Prison Act 1952, His Majesty’s Chief Inspector of Prisons has a statutory duty to inspect immigration detention facilities. The chief inspector regularly conducts unannounced visits to detention facilities, reporting candidly on the conditions, and makes clear recommendations to the Secretary of State. They are an important safeguard for people in immigration detention and should play a vital role in the external and independent scrutiny of any expansion of the detention estate.

The Government know too well that it is not simple conjecture that detention facilities may fail to meet safeguarding rules and accommodation standards, given the events at Manston in 2022. With a maximum capacity of 1,600, Manston became overcrowded, with the number of people detained there nearing 4,000 towards the end of 2022. There are concerns that the conditions there are likely to have amounted to inhuman and degrading treatment.

In November 2021, the chief inspector carried out an inspection of Tug Haven—I must not lapse into pronouncing it as if it were in Holland—which was predominantly used to accommodate migrants who had undertaken crossings from France. He described the conditions there as “unacceptably poor” and said:

“At Tug Haven, we saw several people who arrived with significant injuries and illnesses, but the site was ill-equipped to meet their needs. Migrants had little private space and were sometimes held overnight, sleeping on the ground, often in wet clothes”.

He found that only one of his 10 recommendations from the previous inspection in 2020 had been partially achieved, with the others not achieved at all. This report alone demonstrates why the chief inspector’s role in drawing attention to serious safeguarding problems in immigration detention facilities is necessary.

My Amendment 139B would give the Secretary of State a statutory duty to implement all

“recommendations of the Chief Inspector of Prisons in relation to immigration detention”

centres within six months, strengthening the independent external monitoring role of the chief inspector. This is not a needless prosaic suggestion but an essential safeguard in ensuring that humanitarian crises such as those described are not repeated, especially because, after the Bill comes into force, the Home Office will be responsible for some of the most vulnerable people, for whom we know detention poses a greater risk of harm and who will therefore require an expert level of trauma-informed care.

I take this opportunity also to ask the Minister this: will the standing commission, for the Independent Chief Inspector of Borders and Immigration to carry out annual reviews of the Home Office’s practices and policies towards adults at risk in immigration detention, be reintroduced after being discontinued by the Home Secretary in January? These inspections regularly found a gap between Home Office policy intentions and what happens on the ground. We simply cannot afford for this to be the case going forward as the consequences could be catastrophic, including—unjustifiably and regrettably—for children.

I quite appreciate that the Minister may not be able to provide a full response to this proposal now but I ask that he kindly write to me in advance of Report if this amendment is believed to be unworkable. It is of the utmost importance that we understand the inspection framework for detention sites and its legal underpinning. The expansive duties and powers provided to the Home Office by the Bill demand they be matched by statutory and mandatory accountability.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour 7:30, 14 June 2023

My Lords, I support Amendment 139B from the right reverend Prelate, to which I was pleased to add my name. I also support everything he said about Amendment 139A and thank Medical Justice for its helpful briefing. As the right reverend Prelate has stated, this Bill would dramatically increase the detention estate, with many vulnerable asylum seekers including children, pregnant women, and survivors of torture and trafficking experiencing the devastating harm that detention is known to inflict, particularly indefinite detention.

It is therefore imperative, as this amendment recommends, that the Home Secretary implements any relevant recommendations made by the Chief Inspector of Prisons. The chief inspector plays an integral role in monitoring immigration detention. The most recent report noted that following its inspection of all short-term holding facilities run by Border Force, children were sometimes restrained unnecessarily or inappropriately, which goes back to an earlier amendment on the use of force.

Disturbingly, that report mentioned

“documentation showing how Border Force staff at Tilbury took a child to foster accommodation in handcuffs”.

The chief inspector stated that:

“The use of handcuffs for this purpose was disproportionate and unacceptable”.

As already noted earlier in our discussion, the provisions in the Bill risk situations where there is little judicial scrutiny of the exercise of the power to detain for the first 28 days of detention with, as Medical Justice notes, only extremely limited scrutiny thereafter. This lack of accountability seems to be something of a theme in the Bill. In fact, the detention provisions ignore previous findings from the chief inspector, including that detention facilities built and operated according to prison standards should be ended and that a time limit should be introduced.

In conclusion, I echo the right reverend Prelate. Given that the Bill is likely to increase significantly the numbers of people who are held in immigration detention, including groups in particularly vulnerable circumstances, it is essential to strengthen the chief inspector’s role. Will the Government therefore commit to implementing in future the relevant recommendations made by the Chief Inspector of Prisons proposed by the right reverend Prelate?

Debate on Amendment 139A adjourned.

House resumed.