§ 7.27 p.m.
§ Lord Avebury
My Lords, I beg to move that the Bill be now read a second time.
I do that in the ecumenical spirit to which the noble Earl, Lord Gowrie, appealed a few minutes ago, in that I hope your Lordships will assent to two propositions—that our prisons are grossly overcrowded and that it is wrong to keep people in prison when they have no right of appeal to a court of law against their detention. This Bill makes effective provision for the release on bail of persons detained under the Immigration Act 1971. Your Lordships may remember that we discussed a similar proposal exactly three years ago today in the course of proceedings on the Criminal Justice Bill 1982. But the only change in the law that we then made was that, where a person was the subject of a deportation recommendation by a court, the court was given power to release that person subject to conditions.
There are still several categories of person for whom there is no right of application for bail. They are: those held in custody awaiting examination by an immigration officer; those refused leave to enter Britain and awaiting removal; alleged illegal entrants detained with a view to their removal; overstayers following the making of a notice of intention to deport; persons who have completed a custodial sentence and are awaiting the pleasure of the Secretary of State on a deportation recommendation by the courts; persons who are given a non-custodial sentence but who nevertheless, as I shall show your Lordships, spend several weeks in prison before being finally deported; and, lastly, members of the crew of a ship or aircraft who are left behind when the ship or aircraft leaves.
There is no accurate information about the size of the population of Immigration Act detainees because the Home Office publishes statistics only of those who are picked up and taken straight to prison as alleged overstayers or illegal entrants. There are no figures available for those who are kept in prison after the end of a custodial sentence, but the number is substantial. In 1983 Ashford Remand Centre was reported as having held 661 Immigration Act prisoners, and it may well be that the unreported cases are those of people who are being held for much longer periods.
The Parliamentary All Party Penal Affairs Commitee, in its report, Too Many Prisoners, of June 1980, gave the total number of receptions into penal establishments under the 1971 Act in 1978 as 1,305 and said that that was an increase of 80 per cent. over 1165 the 1975 figure. Again it emphasised that the figures that it had did not include those held after the expiry of their prison sentences. The total for 1983, which is the last year for which there are complete figures available, shows that over a thousand were imprisoned under the Act and that they spent an average of six weeks in custody. My calculations are that this cost the taxpayer something over a million pounds, an argument which I hope may appeal to Ministers even if they are not convinced that it is wrong in principle and contrary to natural justice for people to be locked up for weeks without any opportunity of contesting their detention.
The proportion of those detained for more than two months also rose from 12 per cent. in 1982 to 20 per cent. in 1983. In 1984 the Home Office for the first time gave some figures of those detained following completion of sentences. We are grateful to them for that. They showed that there were 41 such persons held for more than two months. From a sample of cases dealt with by the Joint Council for the Welfare of Immigrants, the average was four weeks, but in February 1984 20 per cent. of those detained had been held in prison for more than three months.
I want to pay a tribute to the work of the Joint Council for the Welfare of Immigrants in exposing this scandal and particularly to the work that has been done by Mr. Ken Browne and, before him, Mr. John Plummer and also, with the help of the JCWI, Miss Stephanie d'Orey, whose publication, Immigration Prisoners: a forgotten minority, I think helped to bring this scandal to the attention of the general public.
Very few of the prisoners about whom we are talking here have a right of appeal against the decision to remove or deport them. Any person who is considered to be an illegal entrant is detained without right of appeal, and in 1983 half the total fell into that category. Those refused leave to enter, having arrived without an entry certificate, form another large category. The only detainees who can apply for bail are those who have a right to appeal.
Moreover, alleged illegal entrants are given no chance to contest the opinion of the Secretary of State that that is what they are. Yet, as the Minister knows, there are very many cases where, on the intervention of a Member of Parliament, the Secretary of State ultimately decides to let such a person stay. I remember one such case, which is not untypical, where a person who entered with a work permit as a cook from Hong Kong was declared to be an illegal entrant on the grounds that, when interrogated by Home Office agents, the proprietor of the restaurant in Hong Kong where he claimed to have worked as a cook for five years who, incidentally, could speak no English, agreed that the man had had only three years' experience as a cook and that he had spent the two years prior to that washing dishes. On this basis, the Home Office claimed that the man's references were false and that he had to be removed. If the Minister would like to look this up, the man's reference number is C230190. He was in the end allowed to stay following lengthy representations to the then Minister, Mr. Raison. Yet the former Minister, the noble Lord, 1166 Lord Elton, said the last time we debated the matter, at col. 1092 of Hansard for 23rd July, 1982:There seems no justification for providing a right to apply for bail for a person who does not have a right of appeal".That is the point which is contested between us. He thought that where it was appropriate, an immigration officer or the Secretary of State would always exercise his discretion to release the detainee while the case was being considered. But, as I imagine the noble Lord the Minister may be expecting, I should draw attention again to the case I raised last time of Mr. Abdul Qayyum Butt, a former member of parliament in Pakistan, who spent 137 days in Ashford Remand Centre in spite of appeals to the then Minister, the Home Secretary and the Prime Minister before he was grudgingly allowed out on the condition that he would report to the police on a weekly basis for some months thereafter.
The noble Lord said last time that my proposals would have applied to,even people whom my right honourable friend has personally certified should be detained". [Col. 1091.]Yet here was a man against whom the Secretary of State had aimed the powerful weapon of a personal certificate under Section 13(5), so that directions had been given for his removal as a person whose exclusion would be to the public good. In the end, as the noble Lord will perhaps know, after a protracted struggle and correspondence which fills three large boxes, Mr. Butt was admitted as a refugee. Will the Government say that the courts of England have no role to play in protecting such a man from virtually indefinite imprisonment?
Even if one were satisfied that the Home Office was doing its best to avoid unnecessary detention—and that is certainly not my experience—this would not satisfy the requirements of the International Covenant on Civil and Political Rights, of which Britain is a signatory. This provides in Article 9(4) that,Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful".I understand that the United Kingdom appeared before the United Nations Human Rights Committee under Article 40 of the covenant in April of this year and at that hearing our omission to provide access to a court for this group of people was questioned in a paper submitted by Justice, although I am not sure what was the outcome of the deliberations, because I have not been able to obtain a copy. However, I think it would have been a very difficult point for the Government to answer, that we are in breach of our obligations under the covenant and also probably in breach of our obligations under Article 5(4) of the European Convention on Human Rights, the wording of which is similar, although I have not been able to discover whether any cases have been brought before Strasbourg under that particular article.
On the last occasion that we discussed the matter, the Minister said that Immigration Act detainees were in a special position because their claim to be in the country was in doubt. I suppose that what he meant was that they had a greater incentive than others not to appear in answer to their bail. But surely the courts are the right authority to decide whether a person should 1167 be released on bail, because they do that every day in the case of persons brought before them on criminal charges. They have to evaluate whether a particular individual would fail to surrender, or would commit an offence while on bail, or obstruct the course of justice. All that we are asking in this Bill is that they should do precisely the same for the detainees in question as for the rest of the population of individuals who come before the courts on criminal charges.
That the Home Office use the power of detention to excess is the firm opinion of the Joint Council for the Welfare of Immigrants, the National Council for Civil Liberties, the Immigration Law Practitioners' Committee and all those others who have studied this question. The JCWI assert that 70 per cent. of those detained ought not to have been if the criteria of the Bail Act 1976 had been applied, and, certainly in the cases that I know about, there is a strong propensity to detain in circumstances in which it is patently unnecessary.
If one takes the case of Mr. Y, Home Office reference Y 30641, he was admittedly an overstayer but he asked to be allowed to remain in this country on the grounds that he was married to a British citizen and had two children by her, with another on the way. The Home Office tried to have him arrested when they knew that proceedings for judicial review were being initiated on his behalf, and without waiting for the constituency Member of Parliament, Mr. Clive Soley, to make representations, as he had notified the Minister's office he intended to do. That was also incidentally a clear breach of the undertaking given in writing by the Minister, Mr. David Waddington, that he would always allow the constituency Member of Parliament to make representations and would consider them before any decision was finally taken to have somebody removed. As it turned out, Mr. Y had time to escape the clutches of the Home Office. He only agreed to return to the matrimonial home—
§ Lord Glenarthur
My Lords, I hate to intervene when the noble Lord has only just started his speech. I am put in a rather difficult position when the noble Lord refers to so many individual cases. There is absolutely no way that I can refer to these cases tonight, refute them or even put my case on them. I hope that the noble Lord will not draw out too many individual cases because it would take rather longer for me to research them.
§ Lord Avebury
My Lords, I assure the noble Lord that I am not going to weary the House with many individual cases. In fact, this is probably the last one that I shall draw to the attention of the House. I am seeking to illustrate, in the case of Mr. Y, that he had every incentive to respond to bail and not to go into the undergrowth, as the Minister said in relation to this proposal. I quote what the Minister said:People are detained after making a determined effort to beat the control. You simply can't release them and let them go back into the undergrowth".My point is that a person who has strong family ties, as Mr. Y does, with a wife and two children and another on the way, is not going to disappear into this mythical undergrowth which would mean, of course, severing the family ties that he has established in this 1168 country and that are the very reason for his seeking to remain and that made him become an over-stayer in the first place. Mr. Y is a paradigm. He is not meant to be a case to which the Minister is required to answer on the Floor of the House immediately. I believe that he is fairly typical of over-stayers taken into custody following the making of a deportation order which may or may not have been personally served on the individual.
There is another group who, paradoxically, are held in custody when all they want to do is return home. Those are the prisoners whose sentences have expired while the Secretary of State is still considering a deportation recommendation by the court, even, as I said earlier, those given a non-custodial sentence with a deportation recommendation. For example, foreign shoplifters who are given a fine may nevertheless find themselves spending several weeks in custody. It is thought necessary to hold them for the time in which they are allowed to appeal against conviction and sentence and then for a further period during which they have a right of appeal against destination. Someone may be convicted in the magistrates' court of a minor offence such as shoplifting and be given a fine but nevertheless spend as much as six weeks in custody. An example was dealt with in an exchange at Question Time on 19th May 1980. I shall not go into details. I mention it merely for reference purposes. A person sentenced to a fine by the courts nevertheless spent over a month behind bars.
That it is unnecessary to detain so extensively as we do is confirmed by the experience of other countries. Without going into much detail, I shall mention the experience of France where a court order has to be obtained to hold someone in custody pending removal following refusal of admission or subject to an arrêt d'expulsion, the equivalent of a deportation order. If the person is held for more than seven days he must come before a judge, who may release him subject to conditions or, exceptionally, prolong the detention for not more than six days. Compare that with the case of Mr. Gurdial Singh. Obviously this is a case that the Minister does know about, because it has been reported. He was held for no less than five months following completion of his sentence, prompting the Divisional Court, which has shown itself mostly extremely reluctant to fetter the Home Office in the exercise of administrative power, to declare that it was lawful to detain only for the period reasonably required to complete the necessary procedures.
The evils that this Bill seeks to remedy could partly be dealt with by the more liberal use of waiver of appeals against destination; the more liberal use of temporary release, of temporary admission and of supervised departure. The fact that Immigration Act detainees have a better record of responding to bail and of surrender following temporary release shows that the risk would be very small. In 1977, 13 per cent. of those in custody following a recommendation for deportation made a supervised departure, while in 1983 the proportion had fallen to 1 per cent., even though the Minister described the procedure as one that,can offer considerable benefits in reducing periods of detention and lower costs".1169 This would not be enough to satisfy the requirement that there should be access to a court of law for anyone detained in this country. It is a serious matter that we have been prepared to tolerate the extensive use of imprisonment without the sanction of a court of law and wholly contrary, I believe, to the traditions of English justice. Our current practice adds over 1,000 extra prisoners a year to a system that is already bursting at the seams and locates them in remand prisons where the pressures are most acute. All the organisations that have studied the problem have urged reform on the lines proposed, including the National Council for Civil Liberties, the Runnymede Trust, the Parliamentary All-Party Penal Affairs Committee, and Justice. I hope that these arguments will now commend themselves as well to the Minister. I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Avebury.)
§ 7.46 p.m.
§ Lord Mishcon
My Lords, the noble Lord, Lord Avebury, with his usual fervour, has moved the Second Reading of the Bill and has given a lot of detailed information to the House. I therefore propose, with very little exception, to speak in general terms as to the reason I support the Bill, as do my noble friends. There is one principle about which I should have thought there was no doubt. It is a principle that looms large in our traditions. It is a principle that has made us attack the regimes of other countries. The principle is that administrative detention is contrary to the whole principle of the liberty of the subject and goes completely contrary to the doctrine of habeas corpus. We all know what administrative detention can mean in various countries—the fact that the government machine itself, a civil servant himself, can either restrict or, indeed, increase the period during which someone is detained against his will. That is my general principle. I start with that.
I go on to consider, if I may, with your Lordships three other factors that are particular to this Bill. The first is that it must surely be in our own interests, in the present scandal of our prison population, that the Government are called upon to consider, week by week and month by month, people in prison in numbers far in excess of what we all know to be the absolute limit in regard to detention in prisons in anything like satisfactory conditions. We are well above the proper figures. We are up to about 48,000. That is a scandal. Representatives of the Government say, very understandably, that they have done what they can and that they have seen to it that courts do not imprison unless it is necessary. They have talked about non-violent crimes, saying that the committer of a non-violent crime should not, save in exceptional circumstances, be sent to prison. They have talked about shorter prison sentences. They have talked about building new prisons.
Must it not be a cardinal principle of any policy that you do not have in prison those who have committed no criminal offence but whose entry, if you like, into this country is questioned or whose stay in the country 1170 has been prolonged beyond the permitted stage or who have been ordered to leave this country and who are prepared to leave this country under some sort of official supervision? Why do they all, or most of them—and the noble Lord, Lord Avebury, mentioned the figure of something like 1,000 a year—find their way into our prisons, which are already overcrowded? That is my first point.
I turn to my second point which concerns our own interest in regard to race relations, which are such an important part of the way in which we wish members of our multiracial society to behave one towards the other. Is it not a cardinal principle that we should not allow our ethnic minorities—and let there be no mistake about it, in the main we are talking about our ethnic minorities—to think that, not only are people imprisoned for very considerable periods in regard to matters coming within the Immigration Act, but also they have no proper right of appeal in by far the majority of cases and that, when they do have an appeal, in the main it is to the adjudicator? They will ask, "Who appoints the adjudicator?" It is the Home Office which appoints the adjudicator and, to put it bluntly, it is the Home Office which has sent them into prison. Is that sensible public relations in regard to our race relations policy?
My third point returns to the principle with which I first started. There are those of us who are grieving at this moment at what is happening in South Africa. We are complaining, as did the EC Ministers, at the detentions which are taking place under the state of emergency. Is it for us to sanction the same type of imprisonment? I am not in any way likening conditions in this country to those in South Africa—there is no comparison of any kind. However, what we are complaining about in South Africa is, among other things, imprisonment by administrative order and without any of the courts being involved.
Having said all that, I understood the noble Lord the Minister to say, with perfect justification, that unless he had full notice of a case that was to be mentioned it was quite impossible for him to deal with it in the course of the Second Reading debate on this Bill. The noble Lord, Lord Avebury, who is always completely fair when he addresses this House would be the first to agree that that was a perfectly proper thing to say.
The only case which I shall quote is one which has been quoted previously. I shall not mention Members of Parliament or Ministers who may or may not have given various undertakings; nor shall I put the point of view of somebody who was in prison for a long time and therefore leave in doubt whether that particular point of view had been put properly. I shall mention one case so that your Lordships know with what we are dealing.
On 30th November 1984 a Nigerian called Mr. Johnson came out of Pentonville Prison. If his imprisonment has lasted until 1st December he would have been there a whole year. He had committed no crime and of that there is no doubt. He had committed no crime at all. No offence had been alleged against him and no court had authorised his detention. He was held under the administrative provisions about which I have spoken, conferred on the Home Office by the Immigration Act 1971 which this Bill seeks to amend 1171 in one particular in regard to bail. It meant that an official in the Home Office, by the issue of an order, or the failure to order a release, had kept that man in prison for a year. The only reason he ever came out of prison was that there was a threat of habeas corpus. If that threat had not been made, and if the Home Office had not been alerted to it, he might have been in prison for an even longer period than that.
Your Lordships may ask, "Why was he there at all? What was the provision under the Immigration Act which could allow this country to walk into the very deserved criticism that its great reputation for the freedom of the human being had been so assailed by a matter of that kind?" He was admitted to this country perfectly legally. He overstayed. He overstayed because he had a leg injury and he had to go into hospital to receive treatment. Because he overstayed he found himself in Pentonville Prison for nearly a year.
I do not want to make a point arising out of what may be an exceptional case. That it could happen once under the present provisions of the Immigration Act 1971—and, indeed, if it happened only once—would cause me to argue that that was a good reason for ensuring that we look at the procedure and do something about it.
What does the Bill do? I say with great respect that the Government, any government, ought to look with favour upon this Bill and I am not in any way talking in political terms about the Bill. If my own party were in Government I would say that they ought to do something or ought to have done something about this matter, and other governments of whatever colour in the past ought to have done something about it.
There is an opportunity for this Government not to argue in answer to the Bill, "Well, you know there could be cases where the man may slip through". That happens in our criminal law nearly every day. There could be such cases. However, the law in regard to bail is set down very clearly. All the Bill does is to say that there should be a procedure where, in the normal case, on a recognizance being entered into, the man or woman concerned should be allowed bail. It is for a limited period; it can be renewed and there can be conditions about reporting—all perfectly in order—to secure that the person does not abscond.
In order to cover the contingency of somebody who has escaped previously and who has not honoured his bail on a previous occasion, there is a clear provision in Clause 4 of the Bill that in such a case bail need not be given:the detainee, having on any previous occasion been released on bail … has failed to comply with the conditions of any recognizance or bail bond entered into by him on that occasion".The Government may say, "But how can we protect the public? He may commit a criminal offence". There is an exception in Clause 4 where bail need not be granted; that is, if,the detainee is likely to commit an offence unless he is retained in detention".One may say, "One does not know where he comes from. He may be the carrier of some germ". That is covered in Clause 4: if,the release of the detainee is likely to cause danger to public health".1172 It might be said in the man's protection should bail always be granted? What happens if you find that he is suffering from some mental disorder? It is covered by Clause 4 of the Bill: if,the detainee is suffering from mental disorder and … his continued detention is necessary in his own interests or for the protection of any other person".Then it may be argued, what happens if he is too young and for his own protection he ought to be in custody? It is covered in Clause 4 of the Bill: if,the detainee is under the age of seventeen … arrangements ought to be made for his care in the event of his release and … no satisfactory arrangements for that purpose have been made".Then, what about the position where the authorities know that, although the person has not previously absconded, there are circumstances which make them reliably feel that he may not answer to his bail? There it is in Clause 4: if,the detainee is released as aforesaid [he] is likely to fail to answer his bail.All those situations are protected. I am going to ask the noble Lord the Minister, whatever might have been the Government view in the past, to take the view now that this is the time—for the sake of public relations, for the sake of race relations, for the sake of justice and of our tradition in regard to the liberty of the subject and habeas corpus, and all those things that have been mentioned—to agree that this Bill has the right principle behind it; that there is no good reason for failing to support this Bill. I await with some interest what I hope will be a courageous reply from the noble Lord the Minister, and one in conformity with our great British traditions.
§ 8.3 p.m.
§ Lord Glenarthur
My Lords, I am grateful to the noble Lord, Lord Avebury, for his explanation of his Bill and for the opportunity it gives me to explain the Government's position in relation to it, for although it is a short Bill and to the point, when compared with the existing bail provisions contained in the Immigration Act 1971 its implications are far-reaching.
I recognise at once that detention, particularly in relation to immigration, is an emotive issue. I therefore pay tribute to the noble Lord's desire to ensure that detention under administrative arrangements is kept to a minimum. That is a view we all share. There is no divergence of aim between us on that, and considerable efforts are continually made by all those concerned with detention to ensure that that is what happens. That said, I have to say at the outset that, however commendable the aims of the Bill are, they would have wide-reaching effects, perhaps not all of which have been forseen by those who might promote this Bill.
To go back to basics, if one accepts the need for immigration control—and there cannot be much dispute about that—then it follows that there will be times when, to safeguard the integrity of such control, it is necessary to detain those who seriously flout or disregard it. Equally, it is right and proper that no one should be detained by the use of administrative powers without good reason or for longer than is necessary. For that reason, the Bill deserves attention.
1173 But in the Government's view it would be quite wrong to proceed on the assumption expressed by some critics that the power to detain in immigration cases is used excessively, unthinkingly, or for longer than is necessary. Nothing could be further from the truth. Our policy continues to be to seek to use administrative procedures for release, sometimes on restrictions, wherever possible. While we do not have as much statistical information on the period of time spent in detention as we might like—and the noble Lord referred to this—I can say that, whereas previously the overall figures for persons detained under Immigration Act powers were not kept, we have, since September 1984, been keeping them and they will in due course be considered for publication.
As an interim indication of the effect of the new measures a comparison can be made between the position before and after August 1984 in respect of those detained in connection with deportation. In the period January to July 1984, 18 restriction orders and 41 detention orders were served, and the average number of persons detained for more than two months at the end of each month was 35. In the five months from August to December, the number of restriction orders served was 43, the number of detention orders served was 14, and the monthly average of persons detained for more than two months was 25. From January to the end of March 1985, 23 restriction orders and 11 detention orders were served. The average number of persons detained for more than two months at the end of the first four months of the year showed a steady reduction from 31 in January to 12 in April.
I am sure that this reduction will be welcomed by all those who have expressed concern on the subject, not least by the noble Lord, Lord Avebury. This may perhaps go some way to indicate that there is not quite as much as the noble Lord suggests there might be in what he described as a scandal.
The noble Lord, Lord Mishcon, raised a particular matter concerning a Mr. Johnson. Since he was connected with deportation I can respond briefly to this. It is one of the cases to which the first report refers. Although I can certainly follow this up for the noble Lord, in essence may I say that the report starts off in rather a misleading way about this.
This gentleman had been convicted by a court of a motoring offence when he was an untraced subject of a deportation order made about two years before for over-staying. Consequently part of the time that he was in detention he was in fact serving a sentence following conviction by a court. He was not subsequently released for good reasons which he would have revealed, I am told. Detention was prolonged by his appeal—during which time he was entitled to apply for bail by representations made on his behalf—and by travel document problems.
Although released on restrictions on 30th November he failed to comply with those restrictions by not reporting on 19th December as requested, and since then we have no trace of him. His travel document has not been used and there is no record of his embarkation. I think that that puts another and different light on it. I shall study the noble Lord's 1174 remarks, but clearly there is more to this case than meets the eye.
I think that to some extent it is unfortunate that this Bill should have been introduced to coincide with publication of a series of reports, of which this reference to Mr. Johnson is an extract from one. These are the reports by the Immigration Prisoners' Project. Those reports contain many misleading allegations, and there are others which are inaccurate or indeed outdated.
The reports have been issued without consultation with the Home Office, and take little or no account of the steps we are taking to reduce detention and improve procedures generally. But there are two more reports in the series still to be issued, and I am pleased to say that the representatives of the Immigration Prisoners' Project have taken up an invitation to meet with officials before these are published. I am sure that some good may come of that.
My reference to these reports is not intended to detract from any merit which the Bill might have. As we understand it, one of its main effects would seem to be to provide, for all those detained under Immigration Act powers, a presumption in favour of bail, rebuttable only in certain circumstances similar to those in the Bail Act 1976. The Bail Act, however, is specifically concerned with those who may be convicted of criminal offences. That is far from the case for the vast majority of Immigration Act detainees, and that difference needs to be borne in mind.
As the law presently stands, the right to seek bail under the Immigration Act 1971 exists only where the detainee is subject to an appeal to the independent immigration appellate authorities; or where the detainee is a passenger arriving at a port who has been held by the Immigration Service pending examination and a decision on admission has not been reached within seven days of arrival. In neither event does the right to seek bail carry with it the presumption that it will necessarily be granted.
The noble Lord, Lord Mishcon, expressed concern about the appointment of independent adjudicators. While my right honourable friend appoints the immigration adjudicators, which is the lower tier of the appellate authority, my noble and learned friend the Lord Chancellor appoints the upper tier, the tribunal members. We note the view that the adjudicators should be appointed by the Lord Chancellor, and we are at present considering that in conjunction with him.
The Bill would introduce a presumption in favour of bail to all those detained under immigration powers: that is to say, first, those detained pending examination at port of arrival; second, those under refusal of leave to enter; third, illegal immigrants; and fourth, those detained on the strength of detention or deportation orders. The noble Lord, Lord Avebury, wanted to extend appeal rights to illegal entrants. Under the present law a person whom it is decided to remove as an illegal entrant may not appeal while in the United Kingdom. The establishment of a right of appeal in the United Kingdom for illegal entrants would have the effect of putting them in a more favourable position as opposed to a person seeking to 1175 enter the country lawfully who might then be refused leave to enter, and would appear to reward dishonesty over honesty. But I recognise that a case might exist for affording such a right on humanitarian grounds where the subject had been in the United Kingdom for a number of years and had established strong ties here. The proposal would require an amendment to the 1971 Act, which is not contemplated by the Government at present. It will be noted for further consideration should a suitable opportunity for amending the Act arise.
At the port of arrival, immigration officers have a duty under the Immigration Act 1971 to examine passengers in order to determine, among other matters, their admissibility to the United Kingdom. In the great majority of cases this can be and is done very quickly on the spot. But clearly there will be times when the immigration officer may not be able to complete his examination so quickly, and when he may therefore have good cause to detain; for example, in order to make inquiries abroad, to call for an interpreter, or to interview sponsors. Under the Bill's proposals, however, anyone so detained, for however short a period, would have the right to seek bail from an adjudicator with the presumption that this would be granted. That may not have been the main intention of the Bill but it is still one of its effects, and it is one which in the Government's view would seriously and unacceptably frustrate the operation of the control of entry to the United Kingdom.
§ Lord Avebury
My Lords, I think the noble Lord perhaps ought to give more explanation, because if the court is not satisfied that that person will respond to bail then it does not have to be granted. It is in the same position then as the immigration officer who decides on temporary release, in that the court evaluates the likelihood that a person will turn up when required to do so—for further examination, for example. If it thinks that that person will, as the Minister's honourable friend Mr. Waddington expressed it, "disappear into the undergrowth", then it does not have to grant bail. But in the vast majority of cases the immigration officer will already have considered an application for temporary release, and one hopes will favourably have entertained the idea, and therefore the number of cases coming before the courts will be very small.
§ Lord Glenarthur
My Lords, I think the answer to the noble Lord's point lies in the words in Clause 4, "substantial grounds". As far as I know there is no adequate definition of "substantial grounds", and they would introduce a problem which would be quite unacceptable.
§ Lord Glenarthur
My Lords, the noble Lord asks whether it is a Committee point. It is nevertheless a major part of the Bill. The noble Lord has the words "substantial grounds" clearly written into Clause 4. I am telling him now that in respect of the Bill as it is at present written, that would be the effect of it.
1176 Turning next to the category of passengers who are refused leave to enter, it is often possible for the immigration service to make arrangements for their departure without delay, thus keeping detention periods to the minimum. But under the Bill a detained passenger who was about to be so returned would nevertheless have the same right of application for bail to an adjudicator with the presumption in favour of the grant of bail notwithstanding the fact that he had been found to have no claim to be allowed into the country. At least there is nothing in Clause 4 of the Bill to exclude this possibility, which would not only frustrate the removal process and control generally but would also require additional resources.
Further—and I am sure this was not the intention of the noble Lord—the presumption that bail would be granted might all too easily result, for example, in the arrival of increased numbers of intending settlers, in the guise of visitors, in the hope that if leave to enter was not granted bail could be obtained as a means of securing release with a view to their absconding.
There is another significant area where the Bill as drafted would represent a considerable extension of the powers of the appellate authorities into areas where no statutory rights of appeal presently exist. As I have said, the power of adjudicators to consider bail applications in the absence of an accompanying statutory right of appeal exists only where a passenger is detained, and is still awaiting a decision about his admission after seven days. These occasions are very rare indeed. It follows that the Bill would have significant resource and manpower implications both for the independent appellate authorities and for the immigration service. If evidence was produced that administrative powers of detention were being used harshly or excessively, then it might be no answer to point out the cost and resource implications of any system which aimed to reduce the use of that type of detention; but that is not the position, and these important implications must be identified at the outset.
The Bill could therefore impose a potentially large and unacceptable additional burden on the immigration service, to whose staff it would fall in virtually all cases to appear before adjudicators to present the "substantial grounds" which I referred to for opposing bail, demanded by Clause 4 of the Bill. In the event that bail were to be granted, it would also fall to the immigration service to arrange for the taking of recognizances and any other associated procedures. That is an important manpower consideration to set against the need—I stress the word "need"—to have such a provision.
I understand that the appellate authorities do not keep statistics of the small number of bail applications currently made, but it is not unreasonable to assume that under the Bill, and with the presumption in favour of bail, the number would greatly increase. That of itself is not a reason for objecting to the Bill, but again the resource implications cannot be overlooked. As matters stand, bail applications (when there is a right of appeal to an adjudicator) have an immediate priority. Detained cases take priority over others, and rightly so. This would have to remain the position, and we certainly would have no wish to change it; but to maintain the service would either require greater 1177 resources, within both the appellate authorities and the immigration service, or involve delaying non-detained cases, which may be urgent for other good reasons, at the expense of bail applicants, Or even both. Apart from the additional staff required, it is likely that it would be necessary to set up new hearing rooms to ensure that no shortage in that area was contributing towards the length of periods spent in detention.
§ Lord Mishcon
My Lords, if the Minister would forgive my interrupting, if he is dealing with accommodation and things of that kind, and costs, has he compared that position with the accommodation in prisons that nobody can spare, and the cost of keeping people in prison?
§ Lord Glenarthur
My Lords, I am aware, as the noble Lord himself is aware, of the problems posed by the prison population; but we are talking about not all that many people and I have given some statistics to the noble Lord to indicate that what we are talking about here is a question of need. The principle is the important thing to deal with that particular need. The detail that I am putting on it is merely to indicate the sort of costs which might be needed should this Bill go through.
I do not think that I can go into further detail upon prisons generally. It is the practice for bail applicants to be escorted to the hearing of their applications and this would present problems both for the already hard-pressed prison service (to which the noble Lord, Lord Mishcon, has referred in the case of those detained in prison establishments), and for the arrangements made in other cases.
It is therefore quite clear that there is a considerable cost implication to the Bill. We recognise that administering detention with no provision for the grant of bail or for the seeking of release save by application of habeas corpus is an issue of concern. However, the Immigration Act 1971 already provides for bail in a number of situations. This Bill, with its wide-ranging definition of the term "detainee" and its presumption in favour of bail, would seriously frustrate the operation of immigration control as well as greatly increase resources.
This is not to imply any complacency with the present arrangements. As I have said, we are committed to the use of temporary admission and other administrative procedures for release wherever possible. This commitment, coupled with the arrangements for the review of individual cases involving lengthier detention, already provides, in our view, adequate safeguards. For all these reasons I have to tell the noble Lord and the House that even if the Bill receives a Second Reading it will not receive Government support at any future stage.
§ 8.22 p.m.
§ Lord Avebury
My Lords, I very much welcome, first of all, the noble Lord the Minister's agreement that detention is an emotive issue and that he shares the aim that all of us on this side of the House advance, that of keeping detention to a minimum. I also very 1178 much welcome the remarks made by the Minister regarding the Government's intention to introduce when a legislative opportunity arises a right of appeal for alleged illegal entrants who have been in the country for a long time. Those are two most important undertakings given by the Minister which should be welcomed on all sides of the House.
However, I have to take issue with him on the remarks he made towards the end of his speech, and in particular his ex cathedra assertion that the Bill before your Lordships would seriously frustrate the operation of immigration control, which the noble Lord entirely failed to demonstrate. He has not given a single argument in favour of that proposition. On the contrary, if I may say so, his argument leading up to that assertion was self-contradictory, because if the proposals that we are now advancing would create a large and unacceptable burden on the immigration service, that must surely be only because a large and unacceptable number of persons are being detained under the administrative procedures at present applied by the Home Office.
Nor can he have it both ways in his arguments about costs; because the fewer people there are detained in custody in the prisons the lower will be the cost of maintaining them there. I believe that it now costs over £200 a week—and the noble Lord will correct me if I am wrong—to keep somebody in a remand prison. Therefore, if it is correct (as I am informed) that the average length of stay of these people in the remand system is eight weeks, every one of them is costing the taxpayer £1,600. I am sure the noble Lord is not going to say that to provide a right of appeal and a right of access to bail for a few of these people will impose anything like that cost on the taxpayer.
Moreover, the noble Lord omitted to reply to the remarks I made at the end of my speech about the greater use that could have been made of temporary release, temporary admission and supervised departure, all of which would result in a reduction in the number of people who need to apply for bail. As I said, the Home Office has not satisfactorily explained why all those who are detained following the end of a period of imprisonment and who normally spend additional periods in custody while the Home Office is making up its mind whether to accept the recommendation of the court for deportation, would be candidates for supervised departure. The vast majority of them would be delighted to go back home as quickly as they can.
Nevertheless, as has been shown, the vast majority of them have to remain in custody. In those circumstances, if the department the noble Lord belongs to is not prepared to use the procedure which the honourable gentleman, Mr. David Waddington, himself commended, it should face the challenge in the courts that those people would be able to apply for bail.
§ Lord Glenarthur
My Lords, perhaps I may refer—I ought to have done so earlier; and I apologise to the noble Lord—to the question of supervised departure. Our policy is to use the procedure in all suitable cases. There has been a drop in the number of supervised departures in 1983 following various particular difficulties. We are now seeking to ensure that 1179 supervised departure is used wherever possible. The numbers are unlikely to reach the levels of 1977–78. There has been a decline since 1978. It is also reasonable to assume that if the courts are more inclined to authorise release in appropriate cases the remaining detainees are less likely to be suitable either for release or for removal by supervised departure.
The trend towards reduction in detention seems right but its effect is to reduce the candidates for supervised departure. This needs to be recognised when one compares the figures for earlier years. I hope that will answer some of the noble Lord's points.
§ Lord Avebury
My Lords, only partially. As the noble Lord perhaps recollects, we correspond between us on a rather large number of prisoner cases. Some of these are concerned with the individuals who reach the end of their sentence and who would be only too delighted to go back to their countries of origin if the Home Office would only let them. So I do not accept his contention that only a small minority of cases are suitable to the supervised-departure procedure and that if you were to increase that percentage the likelihood of absconding would correspondingly increase.
If the Home Office was able (as it was) to allow 13 per cent. of those in question to depart by means of this scheme in 1977, why did the figure fall—the noble Lord has not explained this—to 1 per cent. in 1983 and why should it not be a very much larger figure than the 1977 one of 13 per cent? If the figure were approaching the 100 per cent. mark and nearly everybody who was not deported immediately on completion of his sentence could go by supervised departure, the number of cases that would come before the court would be very small and the whole edifice which the noble Lord attempted to raise on the burden that this would represent to the adjudication of the courts falls to the ground.
My Lords, I suspect we are not going to reach a conclusion on this matter this evening but that the argument will continue and, perhaps, will be illuminated by the process that the noble Lord described of a meeting between those concerned with the immigration prisoners' project and the Home Office, so that at least we can agree on facts. My cases were not drawn from the immigration prisoners' project, and I am not able to respond to the attack which the Minister made on the veracity of some of those cases. The ones that I mentioned come from my own files. I was careful to give the reference numbers so that if the noble Lord wishes he can check later on that what I said is true.
I still believe, in spite of the arguments of the Minister, that we face a substantial evil in detaining upwards of a thousand people every year without giving them any right of access to a court. I still believe, in spite of the fact that the noble Lord did not refer to this point, that we are in violation of our obligations under both the United Nations Covenant on Civil and Political Rights and the European Convention on Human Rights. I should have thought, in view of the fact that we have been called before the European Commission on a number of occasions and have come off worst on many of them, that this is something that 1180 the noble Lord might have touched on in his reply. However, I make no complaint of that. We can probably return to the argument in the course of further discussions on this Bill. I commend the Second Reading of this Bill to your Lordships.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.