Amendment 64

Illegal Migration Bill - Report (2nd Day) – in the House of Lords at 4:02 pm on 3 July 2023.

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Baroness Lister of Burtersett:

Moved by Baroness Lister of Burtersett

64: Clause 10, page 17, line 30, leave out subsection (10)Member's explanatory statement This is a technical amendment that is consequent on the amendment in my name to Clause 10, page 17, line 32. This is because section 10(10) as currently in the Bill is consistent with the exclusion of pregnant women from section 60 protection, and should therefore be removed as a consequence of the other amendment.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I move Amendment 64 and will introduce Amendment 65. One is consequential to the other so I will take them together. I thank the right reverend Prelate the Bishop of Gloucester and the noble Baronesses, Lady Sugg and Lady Gohir, for their invaluable support, and Women for Refugee Women for all its work on the amendments.

The amendments do no more than restore the status quo ante by limiting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This aim is supported by the JCHR, Children’s Commissioner and many organisations.

The existing time limit represented a compromise put forward by the then Home Secretary Theresa May in response to your Lordships’ House voting time and again for the absolute exclusion of pregnant women from detention, as recommended in the government-commissioned review by Stephen Shaw, former Prisons and Probation Ombudsman. Shaw based his recommendation on what he considered to be the incontrovertible evidence of detention’s deleterious effects on the health of pregnant women and their unborn children. His verdict was referenced in a recent letter to the Times from, among others, the CEO of the Royal College of Midwives and the president of the Royal College of Obstetricians and Gynaecologists, calling on us to oppose the removal of the detention limits.

I still await an answer to the question I posed in Committee, citing an unanswered letter from the Independent Advisory Panel on Deaths in Custody to the Home Secretary. Has the Home Office

“carried out a full assessment of the risks linked to the indefinite detention of pregnant women”?—[Official Report, 7/6/23; col. 1494.]

Given that the limits on detention for pregnant women were introduced only seven years ago, and it has been admitted that very few have come over in small boats, there must surely be strong grounds for this change in policy. However, as the noble Baroness, Lady Sugg, exposed so skilfully in Committee, we have been given the flimsiest of justifications, lacking any evidential base. For example, in Committee the Minister declared that he was

“happy to repeat … that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes”.—[Official Report, 7/6/23; col. 1504.]

Could the Minister explain what the Government have in mind here? Are they suggesting that women might deliberately get pregnant to avoid unlimited detention or that people smugglers will be scouring refugee camps for pregnant women?

To be fair to the Minister, he tried to persuade us that pregnant women would be treated well on a case-by-case basis. But let us remember what Theresa May said in 2016:

“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. 679WS.]

For a safeguard to be effective, it needs the backing of law. Discretionary case-by-case consideration is simply not enough to ensure the protection of women in very vulnerable circumstances. We can see this from what was happening before the time limit was introduced. Previous Home Office guidance stated:

“Pregnant women should not normally be detained”.

However, under this guidance, nearly 100 pregnant women were detained in 2014, with one-third held for over a month and four held for between three and six months. The gulf between policy and practice has been closed only with the implementation of the statutory time limit.

The Minister also insisted that pregnant women will be protected through categorisation as adults at risk level 3. Yet during the passage of the 2016 Act, the Government ultimately recognised that this approach provided insufficient safeguards. Why are they now arguing the opposite? The Minister further tried to reassure us by pointing out that

“it will be open to pregnant women to apply to the First-tier Tribunal for immigration bail after 28 days” or that

“a writ of habeas corpus”— which, as pointed out in Committee, is very limited in its application—could

“be made at any point”.—[Official Report, 7/6/23; col. 1505.]

But these are women who are likely to be very stressed and may already be traumatised by what they have been through, with damaging effects on their unborn baby. Twenty-eight days in detention is a long time, particularly in the context of a pregnancy.

How realistic is it to expect them to have to engage with the legal system for protection that they receive automatically now? If they did so, why would the Government want to spend time and money on what should be unnecessary legal challenges? This is all in the context of what the JCHR has described as a severe restriction on judicial supervision.

When we debated a similar amendment in Committee, not only did all those who spoke give it unequivocal support but I was aware of a number of noble Lords sitting on the Government Benches and the Cross Benches who were supporting the amendment in silent solidarity. That was quite something, given that it was well past midnight. While I feel passionately about the amendment, it is a very small cog in the wider wheel of the Bill. It is one which the Government could easily concede without undermining the Bill’s objectives, as much as I disagree with them. I very much hope that the Minister will remember what is at stake for pregnant women and their unborn children and will do the right thing today. I beg to move.

Photo of The Bishop of Gloucester The Bishop of Gloucester Bishop

My Lords, it is a great pleasure to follow the noble Baroness, Lady Lister, who expertly outlined why the amendment is needed.

I will not repeat all the points made, but this is an issue of dignity for a highly vulnerable group. I will highlight one or two things that have been said. There is no evidence to suggest that the current 72-hour time limit on their detentions resulted in lots of pregnant women making the crossing. The Government have previously conceded that the adults at risk policy would not adequately safeguard pregnant women, and, in response, the 72-hour limit was brought in. We have research from prior to the introduction of this time limit that highlighted the inadequate healthcare for detained pregnant women. It is hard to believe that any healthcare arrangements would therefore relieve the stress of detention and the damaging impact on both a pregnant woman and her unborn baby.

We have already heard from the noble Baroness, Lady Lister, on the number of medical organisations and people who are opposed to removing the 72-hour limit. I join with them by strongly supporting this amendment, and I urge noble Lords to do likewise.

Photo of Baroness Gohir Baroness Gohir Crossbench

My Lords, I support the amendment from the noble Baroness, Lady Lister, to which I have added my name, because this Government are compromising the safety of pregnant migrant women and their babies.

To date, the Minister has not provided evidence that the numbers will increase if women are not detained. I wrote to the Minister and last week he acknowledged that, since January, no pregnant migrant women have arrived in this country illegally. Evidence has also not been provided that housing a few handfuls of migrant women, who have probably arrived over several years, will provide a danger to our society. For those reasons, I urge the House to support the amendment from the noble Baroness, Lady Lister.

Photo of Baroness Sugg Baroness Sugg Conservative

My Lords, I support the cross-party amendments in this group. I thank my noble friend the Minister for his engagement, which I have truly appreciated, but I regret to say that I have yet to hear an argument as to why this amendment should not be accepted.

This is a very narrow and focused amendment that simply maintains the current protection on the detention of pregnant women. There is a clear medical case, which is why it is supported by the royal colleges, medical professionals and over 140 groups representing women. It will not create loopholes. It will not incentivise pregnant women to make a dangerous crossing across the channel. It does not exempt women from the rest of the provisions of the Bill, such as removal. It will not create a pull factor, and there is really no way it can be exploited by the criminal gangs who arrange crossings. There cannot be false claims of pregnancy, as the time limit starts only once the Home Office is satisfied that a woman is pregnant.

Some have said that pregnant women are unlikely to be removed, given fitness to fly, but that is not the case, as NHS guidelines say that women can travel safely well into their pregnancy. That argument also misses the point, as this narrow amendment is not about removal; it is about detention. If it is the Government’s case that pregnant women may not be removed, it is even more important that this amendment be accepted, so that pregnant women are not detained for lengthy periods of time.

The amendment does not undermine the Bill. It is not a wrecking amendment; I have been very careful to try to avoid those. It impacts just a small number of women, but it will have a big impact on those women’s health and futures.

My noble friend the Minister is sincere when he says that the Government do not wish to detain pregnant women for any longer than is strictly necessary. Sadly, however, before this protection was in place and in legislation, women were kept in detention for weeks and sometimes months. We should not return to that. This narrow amendment is designed to ensure that that does not happen and that no women can slip through the cracks. Even at this last minute, I sincerely hope that my noble friend will accept the amendment. If he does not, however, and the amendment is pressed, I will, with regret, vote against the Government and in support of the amendment.

Photo of Lord German Lord German Liberal Democrat

My Lords, we on these Benches are pleased to support both amendments in the name of the noble Baroness, Lady Lister. I recommend that the Minister take note of the request she has made time and time again in this House for some form of impact assessment in respect of pregnant women.

The detention of women and children marks a major shift in public policy in the UK that we live in. Detention is no place for pregnant women, for the health of the woman or her unborn child. The Royal College of Midwives views the detention of pregnant women as harmful: it increases the likelihood of stress and impacts the unborn baby’s health, as well as interrupting access to maternity care. The Government intend to have a Bill that has no exceptions. What is driving that forward in this detention policy is the argument that it will create a deterrent, and it is shocking that they are rolling back the safeguards we have in current legislation.

One of the issues that has not been mentioned—very briefly—is the suitability of the accommodation and the facilities to accommodate the needs of pregnant women. How can the places promised for detention—barges, barracks and even marquees in the middle of runways—be suitable for pregnant women? The power is created in this Bill and any promises from the Minister that implementation will be different are not sufficient when the power is being taken under the Bill. We need time-limited safeguards on the face of the Bill.

Photo of Baroness Hayman Baroness Hayman Crossbench 4:15, 3 July 2023

My Lords, I have not spoken earlier on the Bill, but I hope the House will forgive me for speaking for a couple of minutes now.

This debate takes me back 25 years to when I chaired a hospital trust. Pregnant women prisoners from Holloway were brought in wearing handcuffs and were chained to beds when receiving treatment and giving birth. We fought a battle with exactly the people who are supporting this amendment to stop that practice. It left me with an overwhelming long-term view that, in all but the most exceptional circumstances, pregnant women should not be in prison in the first place—and those were pregnant women who had been convicted of crimes. Here, we are talking about the detention of people who have not been convicted of crime in that way: they are migrants who are extremely vulnerable. It would be a terrible, retrograde step to take away the protections they have at the moment, so I support the amendment.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, enforced equality, no matter where, cannot be right. To say that everybody must be treated precisely the same under this Bill—which is the only substantive argument that has been advanced—is something that I just could not accept.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

My Lords, I thank my noble friend Lady Lister and the others who have signed these amendments, which we fully support. At its heart, there may be debate and disagreement with respect to this Bill. It is certainly contentious and sometimes we have large disagreements. Despite that, however, whatever the disagreements, we should do the right thing. That is why we support the amendments from my noble friend Lady Lister—because they seek to do the right thing by pregnant women.

Photo of Lord Murray of Blidworth Lord Murray of Blidworth The Parliamentary Under-Secretary of State for the Home Department

My Lords, as we have heard, with these amendments we return to the issue of detention time limits in relation to pregnant women. As I explained last Wednesday, holding people in detention is necessary to ensure that they are successfully removed from the United Kingdom under the scheme provided for in the Bill, which is designed to operate quickly and fairly.

However, our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants back to their home country or to a safe third country will send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people-smuggling gangs facilitating their passage across the channel in small boats on the false promise of starting a new life in the UK.

Under the Bill, detention is not automatic. The Bill confers powers to detain, and the appropriateness of detention will be considered on a case-by-case basis. As regards pregnant women, we expect that anyone who is in the later stages of pregnancy and who cannot be removed in the short term will not be detained but would instead be released on immigration bail.

For women who are detained in the earlier stages of pregnancy, we already operate our adults at risk policy, where pregnant women are recognised as a particular vulnerable group. In all cases in which a pregnant woman is 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 thus the pregnancy will be afforded significant weight when assessing the risk of harm in continued detention. This means 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 where there are public protection concerns.

The detention of a pregnant woman must be reviewed promptly if there is any change in circumstances, especially if related to her pregnancy or to her welfare more generally. Examples of specific welfare considerations that may need to be taken into account include the stage of pregnancy, whether there have been complications in the pregnancy, any known appointments for scans, care or treatment, and whether particular arrangements may be needed to facilitate safe removal. While in detention, pregnant women will receive appropriate healthcare.

I assure the House that, as now, the enforced removal of a pregnant woman must be pursued only where it can be achieved safely and there is no suggestion that her baby is due before the planned removal date. Additionally, pregnant women will not be removed from the UK if they are not fit to travel based on medical assessments.

Given the safeguards we have already built into the arrangements for the detention of pregnant women, the Government remain of the view that these amendments, however well-meaning, are not necessary. I am very grateful to those who have spoken in this debate for outlining their—I am sure—well-held concerns and for their thoughtful contributions. However, in light of what I have just said, I ask the noble Baroness, Lady Lister, to withdraw her Amendment 64. If, however, she is minded to test the opinion of the House, I invite noble Lords to reject the amendment.

Photo of Baroness Lister of Burtersett Baroness Lister of Burtersett Labour

My Lords, I am very grateful to everyone who spoke, and to the Minister as well. Unfortunately, I do not think that he really heard, or listened to, the arguments put. He says he does not think that the amendment is necessary. I am sorry, but countless health organisations, Members of this House and many others think that it is. It is not enough simply to give us assurances here. I have no choice but to test the opinion of the House.

Ayes 226, Noes 152.

Division number 5 Illegal Migration Bill - Report (2nd Day) — Amendment 64

Aye: 224 Members of the House of Lords

No: 150 Members of the House of Lords

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Amendment 64 agreed.