HL Deb 19 July 1999 vol 604 cc693-724

(" . The Lord Chancellor shall, by order, extend the provision of legal aid, to cover bail hearings under the 1971 Act.").

The noble Baroness said: This is an important amendment and deserves the consideration and concentration of the Committee. It deals with the issue of legal aid. Coupled with it is Amendment No. 85, in the name of the noble Lord, Lord Hylton, which deals with a different aspect of legal aid. Amendment No. 67A, in the name of the noble Lord, Lord Cope of Berkeley, and his noble friend, deals with the same issue. All three amendments are closely related.

I begin by thanking the Minister for his work on Amendment No. 80A, to which we shall turn later. I shall not go into it in detail now beyond saying that it deals with the matter of bail with considerable care. The central thrust of my argument is that the provisions on bail, useful and valuable as they are, are in many cases only as good as the legal representation available to those utilising such bail proceedings. We are very much concerned that there should be adequate legal representation for people who are seeking both bail and, at a later stage, other appeals under this legislation.

Perhaps I may say a few words about something which I believe must be obvious to all Members of the Committee. The very nature of the debates we are having shows what an incredibly complex, difficult and complicated Bill we have before us. If noble Lords find it extremely difficult to follow, as I freely admit I do—and it is clear from the answers to many amendments already moved that, in some cases, noble Lords have not fully understood the interpretation or safeguards in the Bill to enable them to withdraw amendments on the evidence provided by the Minister—how much more that will be true of people for whom English is a difficult language to master, who have no knowledge of our legal system, who do not know their rights under the immigration Acts and who are, therefore, virtually unable to put their case or to argue such issues before a court.

Essentially, one might say that provisions for bail are only as good as the legal aid that supports them. Otherwise, it is like a car without petrol or a cart without a horse; in a sense, they are not fully effective. The first part of my argument is that legal aid for those seeking bail is absolutely crucial in order to make the Bill achieve the very purposes that the noble Lord has named for it.

The second crucial argument is that we need to be in full recognition of our international obligations. I should briefly remind Members of the Committee that on many occasions during the recent crisis in Kosovo Her Majesty's Government prayed in aid our commitments under such international conventions as the genocide convention, the crimes against humanity convention, the Geneva Convention, and others, thereby indicating that we believed ourselves to be closely bound by the provisions of that international legislation.

In this Bill we are concerned that, as a country, we are bound by the European Convention on Human Rights which, in Article 5, specifically says: Everyone has the right to liberty and security of person … that no one shall be deprived of his liberty, save in the following cases and in accordance with the procedure prescribed by law".

One of those "following cases" deals with the lawful arrest or detention of a person but goes on to say that everyone who is arrested must be informed of the charges made against him, of the reasons for his arrest and, shall be entitled to take proceedings in a court to make out his case".

I turn now to Article 6, with which the European Court has shown itself on many occasions in existing jurisprudence to be particularly concerned and which deals with the issue of due process. Under Article 6 3C, the convention makes it plain that people must have the right to defend themselves in person or through legal assistance of their own choosing, or—and this is the crucial phrase— if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require".

Therefore, both under the European convention and the refugee convention, it is plain that legal aid is very much part of the provision that needs to be made to enable asylum seekers or refugees to receive their full recognition of rights and be able to argue their cases.

I am certain that the Government will, quite rightly, point to Clause 45 under which the Bill says that the Secretary of State "may" make provision for funds to be provided for certain voluntary organisations. We on these Benches very much welcome that provision. But, first, it is cast in a conditional mode; indeed, the word used is "may". Secondly, if the Government have in mind the voluntary organisations long associated with the rights of refugees, then, while we very much welcome the proposal, we are also very conscious that the particular bodies most readily thought of under these provisions—namely, the Refugee Legal Centre and the Immigration Advisory Service—are virtually overwhelmed by the demands made upon them. That is the case even before asylum seekers and refugees are given additional information, as we plead that they should be, about the contacts they may make in order to arrange legal representation for themselves.

In those circumstances, we believe that it is important that legal aid should extend to recognised, regulated advisers. Under Clause 5, the Bill makes full provision for the regulation of such advisers. As the Minister knows, we on these Benches fully agree with that; indeed, we fully accept that what one might describe as "legal cowboys" should not be provided with money from the taxpayer. We shall support such clauses when we reach that stage. But, equally, under the regulated list, where an asylum seeker or refugee already has a legal representative who is familiar with his or her case, it means that legal aid should be extended if only because the person so concerned will be familiar with the case. As the Minister will be well aware, many cases are now of very long standing and, indeed, many months of work may already have gone into them. It would, therefore, be both expensive and unnecessary to repeat that work.

There are two groups in that context about which we are particularly concerned. One group contains people with a history of torture; another group involves women with a history of persecution as a result of rape or other violent attacks upon them. It is not always easy in such cases to get the full briefing that the legal representative needs in a very short space of time. The Medical Foundation for the Care of Victims of Torture, which is well know in this Chamber, has repeatedly pointed out that those who suffer from persecution as a result of torture very often take some time to come to terms with their situation and to fully explain their position to a legal representative.

We understand that some consideration has already been given by Her Majesty's Government to this whole area—we are grateful for that—and that proposals are being considered, as a result, I believe, of the work of the Legal Aid Board. This aspect will be pursued by my noble friend Lord Dholakia on Amendment No. 67 in the hope that we can learn something more about such proposals. However, perhaps I may say once again that we believe that Amendment No. 67, which deals with cases under the 1971 Act instigated by the detained person; Amendment No. 85, in the name of the noble Lord, Lord Hylton, which concerns issues of routine bail proceedings; or Amendment No. 67A, which covers both aspects, should become an essential part of this Bill if justice is to be done and is seen to be done. Indeed, if, as the Government claim, the plight of asylum seekers and refugees who are genuine is to be fully considered under the provisions of the Bill, we believe that this requires that such people should be properly legally represented.

We strongly support the Government's attempts to speed up the process; we strongly support their view that the number of appeals should be limited. However, that only follows if those appeals are effectively argued and, therefore, are not likely to be raised again under other methods and other channels. We believe that it is in the Government's own interest that the asylum seeker or refugee should be legally represented in such a way that the appeal can look into all aspects of the case and can deal with it satisfactorily from the point of view both of the asylum seeker and of the Government. I beg to move.

The Lord Bishop of Ripon

I am glad to be able to support the amendment moved by the noble Baroness, Lady Williams of Crosby, to which I have added my name. The amendment concerns the provision of legal aid and seeks to give proper legal representation at a bail hearing. I welcome the requirement in the Bill that reference shall be made to the court for the purpose of determining whether release on bail should be provided.

The whole matter of detention has aroused widespread dismay, especially the arbitrary way in which detention has been used. It has been difficult to determine on what grounds detention has been used. It is not clear why some are detained while those in almost identical circumstances are not detained. I therefore welcome the provision of these bail hearings.

As the noble Baroness, Lady Williams of Crosby, has argued, these hearings will meet the widespread concern in this area only if there is proper legal representation. In some cases this can be provided. Reference has been made to bodies such as the Immigration Advisory Service and the Refugee Legal Centre. I am glad to hear that there may be possible additional funds available to them. However, although they are publicly funded, the level of public funding is dependent upon decision of the Home Office. It is perhaps a somewhat curious situation that the Home Office can decide the level of support that is to be given to these bodies which are arguing the opposite case to the Home Office itself.

It is clear that at the present level of support these bodies cannot possibly meet all the demand. As has been said, they are already overstretched. The Asylum Rights Campaign estimates that possibly some 10 per cent of those who need to be represented at bail hearings could be represented by these publicly funded bodies. Therefore, the extension of legal aid to cover these bail hearings seems to be of great importance. It is clear that many, probably most, asylum seekers are not able to afford any kind of legal aid which they pay for. If legal representation is not available to an asylum seeker, it is difficult to see how his or her case is to be properly argued. Effectively, the detainee is unable to make a case. The noble Baroness, Lady Williams of Crosby, argued that such a person is likely to be in a particularly fragile condition. I make the additional point that most of us who have to argue a case before the courts in this country have some kind of support. We may belong to a professional organisation or a trades union. However, there is no such support available to an asylum seeker.

Therefore there must be a real question to be addressed in relation to the European Convention on Human Rights. As has been pointed out, Article 6 entitles all to a fair trial. Without proper legal representation it seems to me perfectly possible to argue that this right is not being provided. I am aware that there is a question mark about whether Article 6 should attend to asylum seekers, but I am also aware that a recent decision in the courts seems to indicate that in present circumstances it is likely to apply to asylum seekers. I quote from the Asylum Rights Campaign and the document Immigration Detention and Human Rights which states on page 35: Assuming that the determination of asylum law issues can be within the ambit of Article 6, the present scheme may he wanting in so far as it appears to deny many applicants a right of access to the Courts". The document further states that it is possible to argue that an applicant, had been effectively denied access to a Court because legal representation was required … and the applicant could not afford it and was not able to obtain legal aid". I should be grateful to hear the Minister's view on how Article 6 of the convention is to be met unless there is proper legal representation at a bail hearing.

5.30 p.m.

Lord Avebury

Although asylum seekers may not have—as the right reverend Prelate said—any trade union or professional association looking after their interests, they do have the services of the Association of Visitors to Immigration Detainees who do an excellent job in putting asylum seekers in touch with relevant organisations, including those which have been mentioned several times; namely, the IAS and the Refugee Legal Centre. Therefore people do visit detention centres and other places where asylum seekers are held and attempt to put them in touch with those who are capable of providing them with this legal representation. I thank the Home Office for providing a certain amount of support for these bodies which enables them to do their work.

All those who have looked at this subject have commented that the £5.9 million allocated by the Home Office for the provision of legal services by these two organisations in the year 1998–99 is grossly inadequate. It is already quite insufficient to enable them to deal with the appeals. They have only the capacity to look after a fraction of the asylum seekers who come to them for assistance. If the additional work of looking after the bail applications is now being placed on them, they will be totally unable to cope.

Even if, by some act of great generosity, the Home Office was able to assure the Committee that the money available was sufficient, I believe that it would still be difficult for these two services to expand the provision of advice to cope with the system of bail once it is introduced. It will take them quite a long time to recruit the necessary lawyers and so on. I would like to see the two organisations handling the bulk of the cases. I believe it is a fact—perhaps the Minister will comment—that because of their general competence and knowledge of the situation of asylum seekers, acquired through great experience of dealing with such cases, they score a much higher percentage of success in cases taken before adjudicators or the tribunal than run-of-the-mill solicitors. I do not mean to disparage solicitors; I say only that most solicitors do not have the detailed expertise that resides in these organisations. Therefore the organisations are more successful in appearances before adjudicators and tribunals. For that reason I think it would be highly desirable if they could cope with the bulk of the applications for bail which will be made after this Bill comes into force.

However, when we see what is said in the White Paper, one cannot be too optimistic. The White Paper states at paragraph 7.26, The Government is determined to bring this use of legal aid under tighter control. It cannot be right that legal aid is so freely available at the taxpayers' expense to those whose claim to remain in the UK is unfounded". How do we know that a claim is unfounded until it has been tested before the courts? It is not a good start for the Government to adopt the attitude that because some of the cases which will be presented for bail are not well founded we should look carefully at the amount of money that is being spent and try to force it down.

The matter was raised in the Second Reading debate, and the Minister was kind enough to write to me. I wish to quote from the Minister's letter to place it on the record. He wrote: You also raised the issue of legal aid for detainees in connection with routine bail hearings and the funding arrangements for both the IAS and RLC. On the first of these points I am happy to reassure you that it has always been our intention to ensure that detainees could obtain free representation for routine bail hearings". I am glad to have that on record. The letter continues, We do not however feel that it would he appropriate for detainees to have access to legal aid. Given that there are already Government funded organisations who can give free representation in connection with appeals and related questions of bail under the 1971 Act, it seemed most sensible to provide a similar provision for routine bail hearings. As well as representation at the hearing itself, funding will be available for these organisations to visit the detainee to take instructions. Officials within the Immigration Service have consulted and met both organisations to discuss concerns about representation and funding. Clearly both organisations will need an increase in their grant in aid payments to enable them to provide a service to all detainees irrespective of where the person is detained". That is very good as far as it goes. Can the Minister give an assurance not only that the money will be increased but that the two organisations which will be in receipt of these grants will be given the opportunity to build up their staff so that they can cope with the expected flood of applications for assistance with regard to bail hearings? If the RLC and ILS tell the Minister that they cannot immediately put themselves into gear to take into account all the cases that will be submitted, can the Minister assure us that at least those which they cannot accept for the time being will be the subject of legal aid for the interim period before they get into full gear?

Lord Hylton

I rise to speak to my Amendment No. 85, which is included in this group. It is most important that detained people whose cases have not yet been determined should have representation in addition to advice before a bail hearing. It is essential if, as often happens, those persons have no English or very poor English. All sides of the House—including the Government—are agreed on the need to keep the use of detention to the absolute minimum.

We are faced with a situation where we have three alternative amendments in virtually the same terms. One or other them may be better—perhaps the Government will express an opinion—but I urge the Government to accept at least the principle of the amendments and, if they wish, to come forward with a better form of words.

In any case, it must be made crystal clear that representation and advice in bail hearings should be available to asylum seekers as well as to other kinds of immigration cases. If this principle can be adopted there will be very considerable savings to the public purse in view of the very high cost of detaining a person for even as long as a week.

Lord Dholakia

I support this amendment and the case made out by my noble friend Lord Avebury and the noble Lord, Lord Hylton. One of the problems is that there are very few bodies offering advice in terms of immigration and asylum matters. They are inundated with work and there is considerable pressure on their particular resources. I am grateful to the noble Lord, Lord Williams, for having put in a considerable amount of work in terms of bail and related matters.

No one can dispute that if Article 5 of the ECHR is to be satisfied a detained person must have access to legal representation at hearings where his liberty is in question. Although it can be argued that organisations can be funded exclusively under Clause 45 to provide legal representation, that might not always be the most efficient use of public funds. For example, if a solicitor has already been instructed by a detainee, it would be a more efficient use of public funds for the solicitor to represent the detainee at the bail hearing rather than for a file to be sent to the Refugee Legal Centre or to the IAS. If bail hearings are to be held infrequently in more geographically isolated courts, people at local level may provide a more efficient service.

I understand that some representation was made by the Legal Aid Board to the Lord Chancellor on this matter. It would be very helpful if it could be indicated precisely what the representations were and the outcome of the discussions with the Lord Chancellor's office.

Viscount Bridgeman

We on these Benches support the amendment standing in the names of the noble Baroness, Lady Williams, and the right reverend Prelate the Bishop of Ripon.

Amendment No. 67A, standing the name of my noble friend Lord Cope of Berkeley, is a small and technical one. Under the Immigration Act 1971 only hearings before an adjudicator would be provided for. The wider definition of "Immigration Acts" would enable representation to be provided at the bail hearings. The noble Lord, Lord Dholakia, mentioned the strain on representation and the need possibly for voluntary bodies to be involved. Nevertheless, if a detainee has a solicitor, it enables that solicitor to be present at an early stage in the hearing.

Perhaps I may speak also to Amendment No. 97. This amendment seeks to further tighten the definition of authorised advocate by reference to the definition of "qualified person" under Clause 74(2) of the Bill. The amendment bears in mind the purpose of the Bill to regularise the professional representation of asylum seekers.

5.45 p.m.

Earl Russell

I wish to speak in support of Amendment No. 99, which is included in this group. It stands in the name of the noble Lord, Lord Cope of Berkeley. I thank him for his kind words about our amendment and I would like to support this one standing in his name. It seeks to provide that, the Secretary of State shall ensure that such advice and assistance for detained persons is available in Northern Ireland".

Lord Williams of Mostyn

It is not in this group.

Earl Russell

Is that amendment not in this group?

Lord Williams of Mostyn

No. It comes later.

Earl Russell

I beg the Minister's pardon. It was in my grouping, which must be out of date.

Viscount Bridgeman

My noble friend Lord Glentoran will be speaking to the amendment later in the debate.

Lord Williams of Mostyn

I sympathise with many of the questions that have been put. I hope to be able to reassure the Committee about the scheme we have in mind. I cannot support any of these amendments but perhaps I ought to make our position plain. The Government intend to ensure that legal assistance is funded throughout the bail process by means of Clause 45 of the Bill. As the noble Lord, Lord Dholakia, pointed out, this supplements the funding already given for bail applications under Section 23 of the 1971 Act.

It perhaps will be helpful if I make it quite plain that we are working with the organisations currently funded under Section 23 to ensure adequate representation in all parts of the country. The Refugee Legal Centre and the Immigration Advisory Service have been, and will continue to be, involved in assessing the funding and personnel resources required to ensure that every detainee has representation at bail hearings. The Refugee Legal Centre and the Immigration Advisory Service will be part of the project group in implementing this part of the Bill. We could not have included them more fully.

I do not have precise figures but I can confirm from my own experience and from comments by various tribunals that they provide an extremely good service. When the noble Lord, Lord Avebury, said that very often the expertise is more concentrated there, that is absolutely so. There is a serious danger of other practitioners, apparently qualified, lacking the expertise to deal with these difficult matters—not least with the problems of language and culture. The Refugee Legal Centre and the Immigration Advisory Service are well equipped to deal with such problems but many barristers and solicitors are not.

The right reverend Prelate the Bishop of Ripon raised the question about whether or not these arrangements would be consistent with Article 6. Article 6(3) deals only with those charged with a criminal offence; it does not therefore go to the question with which we are dealing. However, I recognise his underlying purpose. Article 5 does not provide a funding right either. I am not saying that on the rather ignoble basis that we are not obliged to do it, therefore we shall not; quite the opposite. I am proposing that we are not obliged to do it, but we certainly shall.

Amendment No. 97 is in a distinct category. I agree with its purpose but I do not believe it is necessary. The requirement that "immigration advice" may only be given by a "qualified person" is already prescribed in Clause 74(1) of the Bill. We need to go to Clause 72(1) to see the definition of "immigration advice"; it includes advice in connection with an application for bail under the immigration Acts or Special Immigration Appeals Commission Act 1997. At the moment we are checking whether this is sufficient to cover routine bail hearings under this part of the Bill. If it is not, I intend to make appropriate changes to Part V of the Bill.

On legal aid generally, the Committee will recall that it is available in habeas corpus or judicial review proceedings challenging the legality of detention. Of course, that is on the basis of challenging the lawfulness of detention in accordance with Article 5(4) of the ECHR, to which the noble Lord, Lord Dholakia, referred.

The specific question was raised about the Legal Aid Board's consideration of representations. The board is considering Section 23 at the moment. We shall pay careful attention to any recommendations and if we need to make any further consequential changes, we shall give them every consideration. To summarise, I believe that the organisations we can fund, and with which we are working closely, should be able to offer a decent, effective and appropriate service to every detainee at bail hearings. I hope that my answers have reassured the Committee.

The Lord Bishop of Oxford

The noble Lord, Lord Avebury, made the point, as did several other noble Lords, that the organisations helping asylum seekers are very stretched and there is some doubt about whether they can meet the increased demands. The noble Lord, Lord Avebury, suggested that legal aid might be made available in an interim period until the organisations were fully able to take up the load. I wonder whether the Minister could respond to that point.

Lord Williams of Mostyn

I have dealt with that point, which was raised by the noble Lord, Lord Avebury, and by the right reverend Prelate the Bishop of Ripon. I am happy to repeat that the Refugee Legal Centre and the Immigration Advisory Service have been involved, and will continue to be involved, in assessing the funding and personnel resources required to ensure that every detainee has representation at bail hearings. They are to be part of the project group that will implement this part of the Bill. I believe that we should put funding into those organisations, which have the expertise and experience, because we require good service. They give good service, but they could do better if they had better personnel and financial resources.

Baroness Williams of Crosby

The Minister did not deal with a point that I raised in the same context. In a case that has been going on for some months or even years, with a legal representative who is himself on the registered list—that is to say, satisfies the requirements of Part V—would it be acceptable for that case to be continued, at least in the interim, through legal aid, because the legal representative is a recognised practitioner, to avoid the possibility of duplication, with the entire case being reconsidered from the beginning? Would the Minister's remarks about Clause 45 apply to new cases only, or to existing cases as well?

Lord Williams of Mostyn

I shall look into the question of existing cases. It is possible that there may be some, but I cannot give a commitment on behalf of my noble and learned friend the Lord Chancellor, who is rightly determined to get the legal aid system into some sort of sensible shape. That point was also raised by the noble Lord, Lord Hylton, and I shall look at it without commitment.

Lord Hylton

The Minister has pointed out that the existing voluntary organisations are somewhat stretched in their capacity to deal with all the casework. Would he therefore consider whether Asylum Aid might be a suitable organisation to add to the list? I have no personal connection with the organisation. It was not established directly or indirectly by a government and, as far as I know, it does not receive a large government grant at the moment. On the other hand, it has a good track record in dealing with cases of asylum seekers who have received an initial refusal.

Lord Williams of Mostyn

I am happy to look into the detail of that, but I must repeat that it is the present organisations which have the Section 23 funding that we shall consider in closer detail.

Viscount Bridgeman

I thank the Minister for his most helpful reply to Amendment No. 97.

Baroness Williams of Crosby

I also thank the Minister for his kind reply. Will he bear in mind the case of Amuur v. France, which we are advised raises the issues of legal aid on ECHR Article 5 cases? I believe that the judgment in that case held that a legal regime covering detention carried with it the right to consideration on grounds of arbitrariness. That point was not directly caught by the Minister's reference to criminal proceedings. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 67A not moved.]

Clause 36 [Bail hearings for detained persons]:

Lord Hylton moved Amendment No. 68:

Page 26, line 27, at end insert (", and ("(b) review on a monthly basis the case of any detained person not granted hail at a hearing under this section").

The noble Lord said: I preface my remarks on the amendment by pointing out that we are discussing the interests of innocent people who have not been charged with any offence or crime in this country. They are being detained purely for administrative convenience while their cases are given proper consideration. There is some evidence that in the past certain cases may—I put it no more strongly than that—have been forgotten, while the people in question remained in detention. I say that despite the slightly glib phrases that tend to roll off the Home Office's word processors. The costs of detaining those people, as I mentioned earlier, are heavy and there is every reason to keep down the numbers to the irreducible minimum.

The purpose of Amendment No. 68 is to ensure that cases do not get forgotten, because they would be regularly reviewed by a court. I trust that the amendment will concentrate the minds of the authorities. I would expect magistrates and adjudicators to demand new reasons for each extension of detention and not to be satisfied with bland repetitions of the same formula.

If monthly reviews are too frequent, it might be reasonable to specify five or six weeks, but the interval between reviews should not be longer. Administration reviews within the Immigration and Nationality Directorate have been shown to be inadequate safeguards by themselves. I beg to move.

Lord Dholakia

I rise to support the amendment moved by the noble Lord, Lord Hylton. It would have the effect of extending routine bail hearings so that they lasted throughout the period of detention, as opposed to just the first month. A number of immigrant advisory services strongly support the extension beyond the first six months.

In a letter of 9th July, the noble Lord, Lord Williams, suggested that no useful purpose would be served by such an extension of routine bail hearings. I do not think that this is correct. First, he indicated in the same letter that he does not intend to make legal aid available for representation at bail hearings, and free representation can be provided under Clause 45 only for routine bail hearings. After the first month, only those detainees who can pay for representation are in any position to challenge their detention. It should also be remembered that not all detainees have legal representatives and that some representatives fail to make applications for bail, which involve a considerable amount of preparatory work.

The question of appropriateness of detention will also become an issue the longer a person is detained. A magistrate may consider it reasonable to hold someone for a short time to check documents but not to hold him for months.

The length of time in detention may also exacerbate the effect on the detainee's mental health or lead to those effects becoming more pronounced. The White Paper stated that mental and physical health should be a consideration in deciding whether or not to detain. The state of health may change over the period in detention and if health deteriorates, that may lead the magistrate or adjudicator to take a different view as to whether or not detention is appropriate.

As drafted, the Bill allows for only two routine bail hearings. The effect of the amendment is to ensure that the routine hail hearings continue at monthly intervals, although those detainees with representatives may apply for bail at any time but those without good representation may remain in detention.

Given that the figure of six months for completion of consideration of an asylum claim and all appeals is an average and that detainees are prioritised, it is likely that there will be only one or two further routine bail hearings. It is also an incentive for the Home Office to ensure that the cases of detainees are dealt with quickly.

6 p.m.

Viscount Brentford

The principle underlying the amendments seems to me to be admirable. What is the Home Office principle on reviewing cases of detention? It seems to me absolutely right that they should be reviewed every month and that representation should be available when the asylum seeker attends any such hearing.

I do not expect the Home Office to like that because additional costs will be involved. But it seems to be that it is well worth while to embody that principle in the law. Perhaps the Minister will tell us what is the present Home Office attitude and what is its practice in that regard.

Viscount Bridgeman

In supporting the amendment in the name of the noble Lord, Lord Hylton, perhaps I may deal also with Amendments Nos. 70 and 75 which have been suggested by the Law Society of Scotland and achieve the same ends.

Amendment No. 70 ensures that those persons detained under immigration and asylum legislation are treated no less favourably than those accused of a crime in Scotland. There is a provision in Scots law for an accused person who is remanded in custody on a criminal matter to be brought before a court on the next lawful day. This amendment would bring the terms of the Bill into line with those criminal provisions.

Amendment No. 75 will ensure that the detained persons are brought before a court to make a bail application on the day following their detention. Both the amendments together ensure that a person is not deprived of his liberty without recourse to the courts as soon as is reasonably practical.

The purpose of Amendments Nos. 77A and 77B is to provide sufficient safeguards for immigration detainees. Those two basic amendments would enhance their rights without doing any harm to the scheme of immigration control. They would also serve to make the introduction of statutory bail hearings a meaningful rather than a cosmetic change in the law. Those two amendments simply serve to emphasise the Secretary of State's accountability in ensuring that routine bail hearings take place within the stated time constraints. Since there is no penalty for failure to act within those time constraints, it would be fairer—and seen to be fairer—for the courts to be permitted to take into consideration any undue delays when deciding whether to grant bail. They are designed to be more specific about the Secretary of State's duties under Clause 36(11) to notify the courts in cases of undue delay.

Lord Alton of Liverpool

I support Amendment No. 68, moved by my noble friend Lord Hylton, and Amendments Nos. 70 to 77, 77A and 77B to which the noble Viscount, Lord Bridgeman, has just referred.

In supporting these amendments, I wish to draw to the Minister's attention a letter which I received today from Mr N J P Bond of Barking in Essex and evidence which he drew up for the Special Standing Committee for the Bill when it was being considered in another place.

He has given me specific examples of people suffering in detention and the problems that they have been caused because of, in part, the delays which they have experienced. Before I turn to those examples, perhaps I may quote from his covering letter which states: Whereas great caution is to be used before detaining paedophiles and people with personality disorders, before they have committed an offence, it seems that children and torture victims can be detained for merely seeking refuge in this country with very few if any effective safeguards or restrictions". In the series of six suggestions that he makes for improvement to the legislation, at point 4 he says: Detainees should be told what the maximum duration of their detention will be". Falling short of that, the amendment in the name of my noble friend at least gives us the opportunity to review on a regular basis those cases which are not dealt with expeditiously.

In case any of us should be under any misunderstanding about the appalling situation in which some detainees find themselves, the three examples which my correspondent, Mr Bond, draws to my attention describe far more eloquently than I could the circumstances in which people find themselves. Mr Bond is a computer programmer who spent 18 months visiting both DA and JA blocks of Harmondsworth Immigration Detention Centre on most Tuesday evenings, as part of a voluntary group, from May 1997 to November 1998. Therefore, this is not hearsay and anecdotal examples; they are his personal experiences.

He says: V.S. was detained in JA block, before being transferred to DA block, before a final period at Campsfield, before being released. His detention lasted for 18 months. He had been struck across the nose and over his left eye, with a gun, leaving a scar along a line approximately 30 degrees above the horizontal. He had cigarette burns on his arms and said that he had been tortured in other ways that he did not wish to talk about. He started as one of the more outgoing detainees, hut over the months you could see his soul bleeding to death almost to the last drop before your very eyes. Eventually he was released and I believe he has been allowed to stay in this country". The second case referred to by my correspondent concerns A.B. He writes: A.B. was a giant of a man, reduced to a kind of shuffling about like a baited bear. He had asked for asylum at the airport and had been immediately detained in Rochester Prison for 3 weeks where he had no visitors. Shortly arriving in JA block at Harmondsworth, he wandered into the visitors room. I approached him and said that I was part of a visiting group. He said 'Please could somebody visit me?'. He had been tortured. We discovered that we were both Christians. He asked if I could bring him a bible, which I did the next week, but he had been taken somewhere else. Nobody seemed to know where". The third example concerns someone called I.U. in JA block who had twice been tortured in detention. The letter states: When I met him he had just attempted suicide. He had a white bandage on his left fore-arm. He told me how he feared for his life if returned to his own country. He said that I was the first person in this country to have shown him any courtesy or respect and he thanked me warmly. He showed me his papers from immigration service …One of the papers declared that he was extremely unlikely to be a genuine refugee as (a) he came from a designated list country (white list) and (b) he arrived with a false passport. The following week he had been deported". Those cases graphically illustrate the force of not only this amendment but also the amendments standing in the names of other Members of the Committee. When the Minister replies, I hope that he will recognise the force of the arguments which I place before him on behalf of my correspondent and the force of the argument that detainees are treated worse than criminals because they have no idea for how long they will be held. Many detainees complain that the uncertainty is like mental torture. Even a high maximum duration would be better than none. The amendment goes some way towards dealing with that question.

The Lord Bishop of Oxford

I rise to support the amendment from my experience of Campsfield House. The noble Lord, Lord Alton, put forward moving examples which are not isolated examples, moving though they are. Well documented evidence, surveys and research have shown the deleterious effect of detention upon the mental health of detainees. The longer they are detained, the worse is the effect on their health.

As the noble Lord, Lord Hylton, emphasised, we are dealing with people whom we must presume innocent. Therefore, if we are to detain them, it is extremely important that the detention should be reviewed regularly.

Lord Clinton-Davis

I support the general tenor of the debate. It is encouraging that all sides of the Committee should express concern about the deprivation of a basic human right. I shall not weary the Committee with my own experiences of dealing with these matters when I was in another place and when I practised as a solicitor in criminal law; suffice it to say that the experiences related by the noble Lord, Lord Alton, and referred to by other noble Lords, were commonplace. I am not sure how commonplace they are today.

I hope that in his response my noble friend will give credence to the support that has been expressed. I am sure that the Government are sympathetic to the plight in which these unfortunate people find themselves, largely through no fault of their own. Of course, there are some people who abuse the law. But there is no good reason for keeping them in detention for a long period of time. If they have abused the law, the quicker they are dealt with, the better.

The case that has been made is deserving of close investigation by my noble friend. I am sure that he will reply sympathetically on this point. It is important for the reputation of this country that we deal fairly and promptly with people who find themselves in this position. Promptness and fairness are all too often synonymous in such cases.

The Earl of Sandwich

Perhaps I may add to the remarks of my noble friends Lord Alton and Lord Hylton. There are cases that stretch the patience of those who work with refugees. Many of those workers are friends of Members of this place. Many people cannot understand why the Home Office has not devised a regime for asylum seekers which is not the same as that for common criminals.

I visited a Roman Catholic priest who had recently been to the centre at Haslar. He was struck by the number of innocent asylum seekers who are overcome by the system and who simply do not fight. They feel lost. He said that there is no concept of how to deal with those people. There is no training within the centres for those who supervise the detention.

In supporting my noble friends, I refer the Committee to Chapter 12 of the White Paper, which emphasises that detention should be at the end of the legal process. Information from Bail for Immigration Detainees and other organisations indicates that the opposite is the case. All these matters are connected. It is a case of looking further into the future, to what will happen in five years' time, rather than merely at what happens today.

6.15 p.m.

Lord Williams of Mostyn

Perhaps I may set out our intention in setting time-limits for routine bail hearings and their determination. One element that is lacking in the present system—I do not disagree with what has been said in part—is any degree of certainty or structure with regard to bail hearings. We intend that the first routine bail hearing—to use the word "routine" is not to play down its importance, but to underline the fact that it must be regular—should take place about seven days after the original detention. That timing is to ensure that the court's time is not wasted on dealing with bail in respect of the vast majority of people, who are detained for a few hours or days only, particularly at ports of entry, for the purpose of further examination or removal from the UK. It also gives time for most detainees to go from short-term holding facilities to the immigration service detention centres or discrete holding units. That will mean that the conduct of hearings by designated magistrates' courts close to such centres or units can be carried out by magistrates who will have been trained in that work.

The Government propose that there should be two days either side of the seven-day target to provide flexibility for listing and to take account of weekends and public holidays. That will also allow for arrangements to be made for the escorting of detainees from detention centres to the court.

In order to ensure that the bail hearing is determined by the ninth day, it was necessary to prescribe that the Secretary of State should make his reference to the court no later than the eighth day so as to allow the court time to set up and hold the hearings within the nine-day limit. In practice, the reference will normally be made much earlier.

We aim that the second routine hearing should be heard around 28 days after the first; that is, 35 clays after initial detention—again allowing two days either side to provide flexibility for listing. The time-limits for the second reference are such as to ensure that bail is determined by the 37th day at the latest.

The second routine bail hearing could have been timed earlier or later. We thought that 28 days seemed about right in the likelihood of significant changes in circumstances having taken place. For example, a person may well have moved into the appeal process by that stage. Application of a 28-day period avoids an unnecessary volume of bail hearings of people who are likely to have been given temporary admission or release before the 35th day.

I now turn to an important point, and one that has not been made. Detainees will be able to apply for bail between the first and second routine hearings. Detainees who remain in detention after the second routine bail hearing will also be able to reapply for bail, although they will not be able to use the same arguments of fact and law more than twice. That is the same as obtains in the criminal system at present for those who apply for bail on a number of occasions.

Amendment No. 68 appears—although it may be that we are at cross-purposes—to require the Secretary of State to review monthly the case of a person who is refused bail at a routine bail hearing. It may be that the intention of the amendment was to require the court to review the case; we have taken it as requiring the Secretary of State to review the case. I accept that that may simply be a misunderstanding between the drafter of the amendment and those who scrutinised it.

I am happy to tell the Committee that each case where a person is detained is reviewed monthly to ensure that there is a continued need for detention. It is conducted administratively at increasingly higher levels as the period of detention lengthens. There will therefore be regular administrative reviews, two routine bail hearings and a person's intact right to apply for bail. I believe that those circumstances are adequate.

Amendment No. 77 in the name of the noble Baroness, Lady Williams, would require a bail hearing within three days of the further references proposed in Amendment No. 76. I hope that my explanation shows that neither is necessary.

Amendments Nos. 72 and 74, in the name of the noble Lord, Lord Hylton, would shorten the time-scale between initial detention and the second routine hearing by about five days. I believe that the safeguards that I have described mean that the amendments are unnecessary.

Amendments Nos. 70 and 75, originally in the names of the noble Lord, Lord Cope and the noble and learned Lord, Lord Mackay of Drumadoon, would require an initial bail hearing on the day following detention. For those detained at ports of entry, that would hugely increase the number of people entitled to routine bail hearings for no good purpose, as most are granted temporary admission or temporary release after a few hours or days once initial examination is complete.

Amendments Nos. 70 and 75 would require the training of magistrates in the handling of immigration work at courts adjacent to all the ports and immigration enforcement officers throughout the United Kingdom. We are looking at the possibility of training magistrates to specialise in this work in a small number of designated courts.

In Scotland, the area of interest of the noble Viscount, Lord Bridgeman, it is proposed that because of the small number of bail hearings, they should be heard before adjudicators. My advice is that, if these amendments were passed, they could cause severe practical difficulties in transporting detainees from the more remote locations to the adjudicator hearing centres. Such hearings would not be helpful. In Scotland, as in the rest of the United Kingdom, most people who are detained are also released within a few hours or days. Unlike criminal offenders, to which reference was made, many inadmissible passengers have no UK address and their identity, nationality and true reason for seeking to enter are not always clear.

I have explained our intention in requiring the first and second routine hearings within those time-scales and the need to allow the courts at least 24 hours in which to set up a routine hearing following a reference. I have also repeated the assurance that a detained person can apply for bail outside those hearings. An administrative review of detention is undertaken by the immigration service, with the frequency I indicated.

Amendments Nos. 77A and 77B are different. They would require the court, when deciding whether to grant bail, to take into account whether the time-limits imposed by the clause had been complied with by the courts or the Secretary of State. I understand the desire to impose a sanction, but I do not believe the amendment is relevant when considering whether to release a person on bail. I suggest that it would be wrong to release a person with a history of absconding purely because the courts failed to determine a routine hearing within the time limits imposed by the clause.

I hope that the explanation is of some comfort to the Committee. I am unable to accept the amendments. Before I leave the subject of bail, quite apart from the first routine hearing and the second routine hearing, Section 23 of the 1971 Act will still provide funding for the other bail applications.

Lord Hylton

I am grateful to the considerable number of Members of the Committee who have spoken in support of my amendment, Amendment No. 68. I draw to the Committee's attention the scientific study on a small sample of detainees of the impact of the detention on their mental health. It was carried out recently by a doctor whose name is, I believe, Pourgides and it has been published. She is based in Birmingham.

I am grateful to my noble friend Lord Sandwich for what he said about the training of people responsible for detainees. It is a most important point, but however good the training, it is liable to be defeated if, as has happened and continues to happen, detainees are moved around the system. They are transferred from detention centres to prisons and back again and that is where individuals are at risk of being lost in the system.

I am also grateful to the Minister for what he said about the escorting of detainees to specialised magistrates' courts, and for his reference to the nine-day limit and the second hearing 30 days after the first hearing. He also told us that detainees could make a new application for bail on their own account between the first and second hearings. No doubt the noble Lord also made an important point about how much extra work and hearings could be generated as a result of court cases.

I am inclined to think that we are likely to have to return to the subject on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 68A:

Page 26, line 28, leave out ("Subsection (2)") and insert ("The duty under this section to arrange a reference").

The noble Lord said: In this group we find Amendments Nos. 68A, 68B and 68C. Amendments Nos. 68A and 68B are government amendments. Amendment No. 68A is a drafting detail to clarify beyond doubt that the duties imposed under the whole clause will not apply in the circumstances described in subsection (3).

Amendment No. 68B is to exclude from routine bail hearings those detainees who are subject to deportation as a result of the recommendation of a court following criminal conviction. It is consistent with the presumption in favour of detention in such cases created already by paragraph 2(1) of Schedule 3 to the 1971 Act, which states that a person who falls into the category therein described "shall" be detained pending the making of a deportation order. Such persons will still be able to apply for bail under the existing provisions of the 1971 Act, as extended by Clause 40 of this Bill.

Amendment No. 68C is in the names of the noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, and it may be convenient for me to deal with it now. It seeks to clarify that the detainee can, on a particular occasion, decide that he does not want a routine bail hearing. If a detainee decides that he does not want a routine bail hearing at about the seven-day stage, this would not deny him or her a routine bail hearing at about the 33 to 37-day stage. It has always been our intention that those who are still in detention after 33 days in the circumstances I mentioned would be given a routine bail hearing unless they did not want one at the second stage.

I hope that that explanation provides reassurance for the Members of the Committee who tabled the amendment. I beg to move Amendment No. 68A.

Viscount Bridgeman

I am grateful to the Minister for answering most of the points under Amendment No. 68C. We were concerned that on each and every occasion of a hearing the detainee must give notice that he does not wish to appear before the court. I believe that the Minister answered the point.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 68B:

Page 26, line 29, leave out ("mentioned in subsection (1);") and insert ("of the 1971 Act; () is liable (under section 3(6) of that Act) to deportation as a result of the recommendation of a court;").

On Question, amendment agreed to.

[Amendment No. 68C not moved.]

Lord Hylton moved Amendment No. 69:

Page 26, line 32, at end insertx2014; ("but no person awaiting the determination of his case shall be detained for a period of more than six months").

The noble Lord said: This is a separate and, I hope, straightforward amendment bearing on a different point. It seeks to set a limit to the time during which innocent people may be detained before their cases have been determined. Six months is the target time set by the Government for giving initial decisions to all asylum seekers. If the Government would like to set a slightly longer limit for other complex immigration cases or other categories, I should be happy to listen. I trust that the amendment will be accepted because I believe that it would be a real spur to concentrate the official mind on particular cases. I beg to move.

Baroness Williams of Crosby

I wish to speak to Amendment No. 198 which is grouped with Amendment No. 69, moved by the noble Lord, Lord Hylton. My amendment concerns the setting of an absolute limit of six months to the period which someone can spend in a detention centre. We should not forget that people in a detention centre under this Bill will not be there for any criminal reasons but will have been detained as an administrative procedure.

Perhaps I may say a word about the astonishingly dedicated and committed work done by many of the visitors to detention centres to which the noble Lord, Lord Alton, and others referred. Many of us in the Committee are most grateful to them for the time they give up in an often extremely depressing and sometimes troubling public task. My noble friend and I recently visited the Gatwick detention centre. We were pleased to see the friendly reception given to the Gatwick detainees' friends and to note the amount of work done by those who ran the centre. I believe that it is probably one of the best in the country.

However, those involved in the voluntary organisations have made it plain to us and to other Members of the Committee that there is a limit to how long they can sustain the morale of those in detention. In the most complicated cases—not necessarily those involving the greatest doubts as to validity of the case of the asylum seeker—as month follows month, gradually the morale of the asylum seeker leaks away. Finally, towards the end of a long period of detention, people sink into something close to apathy or sometimes despair.

One characteristic of a tyrannical or dictatorial regime is that it detains innocent people without any indication as to how long they will be detained. A few months ago, I had the obligation of visiting the last standing prison under the gulag archipelago system, Perm 65 in the Soviet Union as it then was, now Russia. I discovered that the most dreadful agony faced by people who had been at that detention centre was not knowing if or when they would ever get out. There was no clear procedure.

An obligation rests upon those of us who are more privileged in a democratic society to limit that sense of being almost totally lost within the system—not knowing when, if ever, the procedures will be concluded. The main purpose of the new clause is to limit that period to a maximum of six months.

I have served at the Home Office and know that when the law says that there will be a limit to the amount of time that somebody can be kept in detention, the Home Office will find ways of making sure that he not be kept beyond that time. If the Minister believes that a slightly longer period would be better, we would accept that—albeit reluctantly. I hope that he will recognise that the badge of a society such as ours is to give certainty to people who find themselves in that dreadful situation—and recognise that they need to maintain their morale, to make their case in the proper time and way. I hope that the Minister will look sympathetically on Amendment No. 69, accepting that the drafting may be less than perfect. Above all, we need to recognise that there must be a limit to how long any human being not charged with a criminal offence should be kept in a state of imprisonment against his wishes and estranged from all who care for him.

6.30 p.m.

Earl Russell

I first encountered the phrase detained during the King's pleasure when I was seven. I supposed that one was let out as soon as the king became unhappy. Alas, I have learnt better. Detention without clear judicial control tends to prolong itself simply for reasons of inertia.

In paragraph 1.24 of Sir David Ramsbotham's report on Campsfield, he draws attention to a case where someone was detained for more than two years. Mention of Campsfield immediately brings me to the thanks that we owe the Minister for the progress that has been made with the Bill, an extremely helpful series of replies and a great deal of hard work. If I did not mention that on Second Reading, it was because my speech lasted 22 minutes and I did not want to prolong the debate.

Lord Clinton-Davis

He would not have minded.

Earl Russell

The Minister might not have minded but certain others might have done. One has an obligation to the whole House.

Although things are better, the noble Lord will forgive my saying that no Minister is omnipotent within his own department. A great deal still needs to be done.

I draw the Minister's attention to two cases—Amuur v. France in 1996 and A. v. Australia in the UN Human Rights Committee in 1997. I have the opinion, which we had before us in the Campsfield case, from Mr. Nicholas Blake, QC. He pointed out that one of the key points in the Amuur case was that to satisfy the proviso that detention should be according to law within the UN convention, it is not enough that it should be according to the law of the country concerned. It was resolved that the act of seeking asylum is not an attempt to gain unauthorised or unlawful entry. It would only become so if an asylum claim was being made with a view to evading immigration control and remaining illegally.

That point is of some importance. At paragraph 50 of the Amuur judgment the UN Court of Human Rights held that the ground of detention must be sufficiently accessible and precise to avoid all risks of arbitrariness. The court further held, at paragraph 53, which relates specifically to the amendment, that detention in the Amuur case was incompatible with Article 5.1 of the European Convention on Human Rights—because at the material time, none of the tests or administrative circulars allowed the ordinary courts to review the conditions under which aliens were held or, if necessary, to impose a limit on administrative authority regarding the length of time for which aliens were held. Those are important words because they indicate that acceptance of Amendment No. 69 could prove crucial for convention compliance.

As part of the judicial oversight to which the Minister has made such a distinguished contribution, it is likely to be necessary to include the power to fix a time limit. I take my noble friend's point about the need to discuss what that should be. As the Home Office has been talking of disposing of all cases in six months, that seems an appropriate point from which to start the discussion. I look forward to the Minister's response.

Viscount Brentford

I support the amendment and strongly endorse everything said by the noble Baroness, Lady Williams of Crosby, about the Gatwick detention centre. I have also visited it and was very impressed with how it was managed and the attitudes of the staff and detainees to whom I talked.

Can the Minister say how many people are at present being detained in excess of six months? That could be relevant. A UN working group on arbitrary detention stated last December that the maximum period for the detention of an asylum seeker should be specified in national law. That makes a great deal of sense.

The Minister may say that there are occasions when it is impossible to reach a decision within six months and that there must be the power to extend that period. If so, I am sure that the Committee would be prepared to consider such a term—but whether the period is six months or has to be eight or nine months, it should be specified in law.

I strongly endorse also from experience everything that has been said about the psychological harm done to detainees by having no idea how long they may be detained. I would like that problem overcome.

Lord Alton of Liverpool

The noble Viscount, Lord Brentford, and the Baroness, Lady Williams of Crosby, paid tribute to those who administer detention centres and the voluntary organisations that support them, and I associate myself with those remarks.

Amendment No. 69 fits hand-in-glove with my noble friend's earlier Amendment No. 68, which sought to impose a one-month limit, to ensure that there would be a review of cases where detainees were kept for a longer period. Amendment No. 69 seeks to ensure that after being held for a six-month period, detainees would be released. The noble Earl said that would ensure that the Government would be more likely to be in compliance with their obligations under the appropriate conventions. I entirely agree.

I was also struck by the noble Baroness's remarks about the nature of civilised societies in the way that they administer their affairs. The idea that someone should be held in a detention centre indefinitely, without a limit being placed on the maximum duration of their stay, strikes me as uncivilised and typical of the tyrannical regimes that the noble Baroness described. If six months is not to be the upper limit and the Government feel that there is a sell-by date beyond which a person should not be kept in a detention centre—and beyond which the Government think that it would be unreasonable to do so—perhaps it would be possible to reach agreement without having to press the amendment to a vote this evening or on Report.

I should like to ask the Minister about specific categories of people who are held as detainees in detention centres. One of those categories comprise people who beyond doubt have been tortured before their arrival in the United Kingdom. Should they be held for any period at all in a detention centre if they have clearly experienced physical torture? Perhaps the Minister in reply will set out the position of the Government in that regard.

I also worry about children who are held in detention. In my earlier contribution to the debate on Amendment No. 68, I referred to the first-hand account of a visitor to one of these centres. He described how he had encountered children on a visit to a centre. Elsewhere in correspondence, he detailed other examples of children being held in detention during his visits. It is extraordinary that children should be held in detention centres at all. Can the Government consider providing more family-friendly facilities where children are involved?

Baroness Williams of Crosby

Does the noble Lord agree that a number of victims of torture are also held in prisons where, if anything, even fewer facilities are available to deal with the particular matter to which he refers?

Lord Alton of Liverpool

I am grateful to the noble Baroness for making that point. The position in detention centres is bad enough, but it is worse in prisons. Most noble Lords who have visited prisons at one time or another will be aware that, as Brendan Friel and others have described, in some cases it is impossible for people to be reformed and it is more likely that they will follow criminal paths. For people to be placed in criminal surroundings, when they have committed no criminal offence at all but have suffered grievously at the hands of regimes from which they have fled, beggars belief. I hope that the Minister accepts that if such categories of people—victims of torture and children—are to be placed in either detention centres or prisons, it should be done with the express permission of at least a Home Office Minister, if not the Home Secretary himself.

Finally, I should like to ask the Minister about how detainees may be shunted from detention centre to detention centre. Can that form part of Ministers' overview when they consider how detainees are held? The Minister will be aware from his distinguished career in the law that a frequent complaint of lawyers who work with detainees—it was one regularly made to me in my days as a constituency Member of Parliament—is that detainees are moved from detention centre to detention centre with the purpose, so it seems, of wrong-footing both lawyers and visitors. Although I do not want to believe that to be the motive of those who make such decisions, that complaint has been made to me previously, and in correspondence received today, by those involved in this area. Perhaps the Minister will address that matter when he replies.

6.45 p.m.

Lord Avebury

The noble Lord, Lord Alton, referred to people being shunted from detention centre to detention centre, or from detention centre to prison. In one particular case—one of the Campsfield five—the detainee wrote to me and by the time I replied he had been moved to Rochester. The letter was returned to me marked "Address unknown" because the authorities had been unable to discover where the person had been sent. Not infrequently, people who advise detainees and try to help them are unable to communicate with them because the detention estate and the prisons do not seem able to communicate with each other. They are not aware when a person is posted from one part of the estate to another what has happened to him.

We are not talking about people who are accommodated in special detention centres constructed for the purpose of housing asylum applicants. We are considering a total of over 900 people, 500 of whom are accommodated in the prison estate; only 400 are in detention centres. As the Minister will recall, in a recent report on Campsfield, Sir David Ramsbotham said that the point should be reached where no detainee was accommodated in a prison. I believe that the Home Office agrees with that recommendation and is moving to a situation in which all such people can be kept in special detention centres. As the Minister announced at Second Reading, a new detention centre is to be built at Aldington on the site of the present prison.

I raise this matter now rather than later when the Committee comes to consider my amendment, which provides that people should be accommodated only in detention centres, because the period for which people are kept in detention is critical to the size of the estate. If we did not keep people for longer than six months and if we knew that the whole group of people whose detention extended from six months to over two years had to be released, what impact would that have on the total number in detention? It would be helpful if the Minister in reply could tell the Committee by how much the numbers in detention would be reduced if there was a maximum of six months. Perhaps we could have the same figures for a shorter period; for example, four months.

After all, if the Home Office is successful in its policy to bring the whole period for asylum determination and appeal down to a maximum of six months, no one can be detained for anything like that period. The maximum length of detention would be whatever was left of the period from first arrival in the country to final refusal, less any period of temporary release. It would be very helpful if at the conclusion of this debate the Minister could give the Committee the prognosis. How many places will it be necessary to provide—after all, this must be part of the public expenditure review—if the Government accept Sir David Ramsbotham's recommendation that people should be accommodated only in the detention estate and no longer in prisons?

Viscount Bridgeman

The noble Lords, Lord Alton and Lord Avebury, have made some important points about children which will come up later in Committee. I detect from the earlier replies of the Minister that he has a time-limit very much in mind. We look forward to his reply and to the point being addressed at later stages of the Bill.

The Lord Bishop of Ripon

The effect of this amendment seems to be wholly right in moral and practical terms. When the moral and practical come together, it seems to me that a strong case is made. The point made by the noble Lord, Lord Alton, and earlier by the right reverend Prelate the Bishop of Oxford, is that the effect on those in a disturbed mental state of being kept in detention for more than six months is well documented and is not just a matter of anecdote. In addition, one must consider the cost to taxpayers, which presumably would be considerably reduced if the amendment was accepted.

Lord Dholakia

I support my noble friend Lord Avebury. Those who repeatedly deal with immigration and asylum cases have difficulty in making representations on behalf of applicants. My noble friend Lady Williams and I visited the Gatwick detention centre. One problem encountered by detainees that repeatedly surfaced was the uncertainty as to how long they would be there. In some cases, those looking after the detainees have not had a clue about what will happen to them.

I wrote to the Minister some time ago about the case of a detainee in one of Her Majesty's prisons. He had written because he was absolutely desperate to know what was going to happen to him. The noble Baroness, Lady Williams, and I received separate letters. We wrote back to him. Two days later, there was a letter from the prison department saying that he had been deported. One felt disgusted that he had been deported; I was on the verge of tearing up the letter. Then I saw a headline in the Guardian that that detainee had been transferred to another prison where he had tried to commit suicide.

Cases like that, where people ask for help but letters never reach them, cause considerable concern. People must know what is happening to them. I should prefer people to be deported much earlier rather than being kept in detention centres for an indefinite period. There should be a time-limit so that everybody would know the outcome of the case, and they should be released at the end of that period.

Lord Williams of Mostyn

A number of noble Lords have suggested a maximum period. The two amendments are different in that Amendment No. 198 refers to an absolute maximum period, and Amendment No. 69 refers to a maximum period of continuous detention. I understand that the thrust behind both is the same.

The noble Lord, Lord Alton of Liverpool, and other noble Lords, spoke of people being shunted around between different places of detention. I simply point out that we are trying to stop people being shunted about. The group of amendments starting with Amendment No. 79 would provide humane, decent opportunities for people to have their bail applications heard without being shunted about, but at least two noble Lords—namely, the noble Lords, Lord Clinton-Davis and Lord Hylton—want to bring about a situation where that could not happen.

During the next three years we shall build two new purpose-designed centres to replace the facilities at Harmondsworth and Rochester. Following David Ramsbotham's critical report, it is fair to say that the Government accepted the principle that no detainee ought to be kept in the prison regime. That cannot be brought about overnight, but we accepted the principle immediately and there was not the slightest demur. David Ramsbotham was absolutely right, and we said so at the time.

The noble Viscount, Lord Brentford, asked me about the up-to-date figures for those who have been held for more than six months. May I research those figures and write to him as soon as I may, and deposit a copy of my letter in the Library?

The average time spent in detention, according to my information, is about 63 days. It is therefore unlikely that spaces would be created by a time-limit of six months. That does not go to the fundamental point made by the noble Baroness and the noble Lord, Lord Hylton; it is simply designed to deal with the question put to me by the noble Lord, Lord Avebury.

In reply to the remarks made by the noble Lord, Lord Dholakia, there should be as short and certain a period as possible. That is why we have said that for families it should be two months, with an opportunity to appeal in a further four months; and that if that is not achieved, the new scheme cannot be made to operate. That is a discipline we would be imposing on ourselves. We are setting ourselves ambitious targets which we believe are deliverable. No one wants anyone kept in detention for longer than possible. The right reverend Prelate mentioned the public expense involved. None of us wants that; we all want certainty and efficiency. However, quite a lot of people do not want their cases to be determined finally in a short period of time, and it is quite easy for them to manipulate the system.

Reference was made to Mr Nicholas Blake's views. The noble Earl, Lord Russell, will remember his intervention in the case of Chahal, which led to the first Bill I introduced after the election. The Bill was intended to provide an appeal system for people like Chahal. The Strasbourg court held that in extreme cases involving national security, detention may be justified, and be compatible with the section referring to the lawful arrest or detention of a person to prevent him effecting an unauthorised entry into the country, or of a person against whom action is being taken with a view to deportation or extradition. That does not go to the heart of the matter because we are all adept at producing, not quite Biblical quotations but at least Conventional quotations, to suit our arguments.

The subjects of torture and children were raised by the noble Lord, Lord Alton. I again draw the attention of the Committee to paragraph 12.4 of the White Paper, which states: Evidence of a history of torture should weigh strongly in favour of temporary admission". Paragraphs 12.5 and 12.6 state that children are detained only in exceptional circumstances and as close as possible to the removal at the end of the process, and that unaccompanied minors are detained exceptionally. According to my information, that means only overnight detention, pending removal or placement into care.

Either Amendment No. 69 or Amendment No. 198 would set the target date, which is, of course, a target date for the Government and for those who have to go through the processes; but they would also set a target date for those who want to abuse the process. It is not unknown for people to apply, to appeal, to try for judicial review and to manipulate the system with applications and representations, or simply non-co-operation. Once someone has got beyond the six months they have to be released, unfortunately often with little safeguard for the public.

There will be some instances in exceptional cases (where there is perhaps a history of absconding or breaches of national security or public order) where people may, if they do not co-operate with the system, be able to manipulate the system. No legal system can work without a degree of co-operation.

We have allowed two months for married applicants with children and four months thereafter for appeal. We believe that that is an achievable target.

It has been suggested that nobody should be kept for more than six months without Home Office or ministerial approval. I understood the whole thrust of the debate was that no one should be kept without judicial approval; yet noble Lords are urging that the matter should go back to the executive. There is a well meaning contradiction there. The noble Baroness spoke of the Gulag. There is no automatic application after seven days paid for at public expense, nor after the further period paid for at public expense. No reasons are given in writing. There is no presumption of bail. I take the point, but we have produced a series of circumstances which are infinitely better than that. They are very significant advances. We seek to attack a machine which is not subject to judicial overview or written reasons without a presumption of bail. Without the automatic first and second routine bail applications, applications for bail can be made, or applications for judicial review.

There is some virtue in applying our minds very carefully to the terminal point, which is a very fair point, as to how long in almost all circumstances it is legitimate to detain people. I shall invite officials to consider that point. I doubt whether it will ever be set in statute or stone, but it is a fair question that requires a reasoned answer when we return to it on Report. It may not be entirely satisfactory—and it may be that I shall by then have obtained more material about how very few people are, in fact, detained for more than six months—but I promise to deal with that issue in my reply to the noble Viscount, Lord Brentford.

At the moment and for the future, I cannot anticipate the amendments being accepted in their present form.

7 p.m.

Lord Hylton

I thank all noble Lords who have supported the amendment. Every person who has given a good deal of thought to the matter has been in favour of the amendment. The Minister is in a minority of one. I sympathise with him—I know that he has a heavy cold—hut it is not a happy position in which to be. He was not quite up to his usual form in suggesting that a considerable number of people are in the prison system because that is what they prefer.

Lord Williams of Mostyn

With the greatest respect, I did not say that. I said some will have to be kept perhaps for beyond six months on national security or public order grounds; and some—I did not say that there were hundreds of them—undoubtedly manipulate the process; and I believe that that is right.

Lord Hylton

I do not deny that people who manipulate the process exist. However, I have heard of only two cases where people remained inside for a very long time, for reasons of their own. One was the case of Chahal referred to by the noble Lord. The other was a man from Hong Kong who held the record, I think, for the length of time spent in our prisons before eventually being extradited. There may have been some cases of non-co-operation, but they are not as widespread as the Minister implies.

I was grateful for the remarks of the noble Baroness, Lady Williams of Crosby, on torture cases. There is a linkage between previous torture cases and attempts at suicide. We know that the Minister is a prison reformer and wants to eliminate, if possible, the incidence of suicide in prison. It is perhaps even more important in the context that we are discussing today. I and others have detected a tendency within the Home Office to deny that torture has occurred in asylum seeking cases. It likes to water the matter down and talk about ill treatment. I hope that that will be corrected, because there is no doubt that torture occurs.

The Minister did not seem able to answer the question about when prisons will cease to be used for detentions under the immigration legislation. Perhaps that will be forthcoming. Perhaps the noble Lord will write to me.

As regards children and young people, the noble Viscount, Lord Bridgeman, correctly pointed out that we shall return to the issue on Amendment No. 114—to which I have added my name—and Amendment No. 115. I am grateful to the noble Lord, Lord Avebury, for his remarks about the shunting of people from one place to another and the harm that that practice does to the preparation of their cases in particular for asylum. I believe that those movements lead to the multiplication of appeals and to an increased number of cases for judicial review.

Detention before individual cases have been decided is a blot on the landscape. It is a matter of which we should be thoroughly ashamed. There is an urgent need for a time limit. It is a matter to which we shall have to return at the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 70 to 77B not moved.]

Lord Williams of Mostyn moved Amendment No. 77C:

Page 27, line 31, leave out subsection (13).

The noble Lord said: This amendment is grouped with Amendments Nos. 122A, 122C, 122F, 122N, 203A and 210A. These are routine drafting amendments. A definition of the special immigration appeals commission is to be inserted in the interpretation clause, Clause 115, which makes the other references elsewhere in the Bill redundant. I beg to move.

On Question, amendment agreed to.

Lord Hylton had given notice of his intention to move Amendment No. 78:

Page 27, line 37, leave out subsection (15) and insert— ("(15) For the avoidance of doubt, the provisions of the Bail Act 1976 regarding the criteria on which bail may be granted shall apply to applications for bail under this Act and under the 1971 Act.").

The noble Lord said: This amendment provides for a presumption in favour of granting bail for detainees similar to that which already exists for persons charged with criminal offences. It is a matter that the Government undertook in another place to include in the Bill. They have honoured that commitment in Amendment No. 80A. Therefore I do not need to move this amendment.

[Amendment No. 78 not moved.]

Clause 36, as amended, agreed to.

Clause 37 [Location of bail hearings]:

Lord Hylton moved Amendment No. 79:

Page 28, line 1, leave out paragraphs (c) and (d).

The noble Lord said: Detention centres and prisons are not acceptable places for the hearing of bail applications. These applications should take place in buildings to which the general public have full access, such as court premises. If it can be shown that some courts which would otherwise be suitable are already fully used, the Secretary of State should designate other buildings which have full public access. It is also essential that the representatives of detainees should be able to take instructions in private, or with a reasonable degree of privacy. This may not be possible if there is only one room for the whole bail hearing process. I beg to move.

Baroness Williams of Crosby

I recognise the force of the remarks of the Minister about people being shunted to and fro. In reply to an earlier amendment he said that if neither prisons nor detention centres were thought to be proper places in which to hold hearings it would mean that people would again have to be moved around.

However, there is a balancing consideration. It was mentioned by the Minister of State, Home Office, at Committee stage in another place. He acknowledged that it was important that bail hearings should be conducted in public. The Minister will know that with some detention centres, and even more prisons, it is difficult to make access easy for the public. It is sometimes difficult to enter prisons without undergoing a fairly lengthy procedure.

When the Minister responds, perhaps he will say whether, as far as possible, bail hearings will be avoided in detention centres, and in particular in prisons. If not, will access be made available for the public to attend given the importance of the principle of a public hearing?

Lord Clinton-Davis

The noble Lord, Lord Hylton, and I were gently assailed—it is the only type of assailing my noble friend the Minister knows—on the amendment. The point that the noble Baroness, Lady Williams, has just made is the reason why I wanted to probe my noble friend's thinking on the subject.

The attendance of the public at court hearings is essential in ensuring that justice is done. That is why our criminal courts are rightly open to the public. The right of a defendant to be heard and the right of the prosecution to outline why a person should not be free are essential to our democratic structure. If there is an overwhelming reason for departing from that principle, I should be interested to hear it. I assure my noble friend that from my point of view, as a supporter of the amendment, it is merely a probing one. I shall listen with interest to what he says. If he wants to assail me in the future, I do not mind.

Lord Renton

I hope that I do not embarrass the Minister by saying that I hope that he does not accept the amendments and that he agrees that the clause should stand part. It would save a lot of travelling for people in a prison or detention centre who want bail if their hearing could be heard wherever they are rather than having to go some miles to the court at which the case had been heard and where the application to a court of similar standing could be made. If the case had been dealt with at a court where a High Court judge was sitting—that would not usually happen unless there was another serious charge involved—a considerable distance might need to be traveled, involving a great deal of public expense. The clause could be helpful to all concerned.

Lord Clinton-Davis

Before the noble Lord sits down, would he extend that argument to ordinary criminal proceedings?

Lord Renton

It is arguable that that could be done. I have not seen a similar clause on bail before. I do not know whether that is due to my ignorance or whether this is a precedent. If it is a precedent, it is a good one.

Lord Avebury

The important issue is whether the representatives of the asylum applicant and their friends and supporters in the community will have easy access or whether the new courts to be opened in the detention centres will be so remote that there are difficulties for the whole process. Perhaps the Minister will tell us whether the Home Office's plans for the reconstruction of Aldington include provision for a court and what facilities there will be for the attendance of the applicant's representatives and their friends among the public. I am not familiar with the geography of the area and I do not know how easy it is to get to Aldington. I know that it is somewhere in the Rochester area. If it is possible to get there by public transport without great difficulty—there is a very good service from London to Rochester—there is no major objection in principle to having hearings there. However, if a new detention centre was built in a remote part of the country and a court was put there for the purposes of such hearings, that would be a different kettle of fish. This is a practical question rather than one of principle.

Viscount Bridgeman

I hope that the amendments are not accepted and that the clause stands part of the Bill. I hope that the flexibility in the clause will be maintained. I have particular regard to the desirability of minimising long-distance transportation in Black Marias. As was mentioned on the previous amendment, it is particularly important that children should not have to travel long distances in such confined accommodation.

7.15 p.m.

Lord Williams of Mostyn

My noble friend Lord Clinton-Davis was right and I am entirely happy to agree with him. Clause 41(4) deals with his point about open justice. It requires magistrates to seek an open court unless the interests of justice require otherwise or, as we plan to amend it under Amendment No. 96C, compelling reasons of confidentiality apply. I can envisage some circumstances in which a hearing might need to be held in private to protect the bail applicant. For example, they might be fearful of pursuit.

I am happy to repeat the important point that if arrangements cannot be made to hold a routine bail hearing in a convenient courtroom, the alternative of conducting hearings in a detention centre should be available. Such facilities should be used only if they maintain the independence and dignity of the court. Those qualities depend substantially on access by the public and by representatives and supporters. Our intention is that hearings would be held in detention centres only if a suitable hearing room was set aside, public access was assured and representatives had all the appropriate facilities for consulting with their clients. In most cases that would require discrete construction work. If Aldington is to replace Rochester, as we anticipate, we shall be looking for provision to be made for discrete facilities for hearings, external access and good hearing rooms to avoid the cost and inconvenience of escorting.

The motive is not to avoid cost. But we should not overlook the point made by the noble Viscount, Lord Bridgeman. Travelling distances in what is called a sweat wagon is a very disagreeable experience. Even sitting in one for half an hour on a hot day—which I have tried—is very demoralising. We are talking about unusual circumstances. When appropriate, subject to the safeguards I have accepted, hearings in the detention centre will be available as an alternative. Given that explanation, I hope that the amendments will not be pressed.

Lord Renton

Before the Minister sits down, I wonder whether he will look at Clause 41(4) for a moment as he has referred to it. It says: A magistrates' court dealing with a reference under Section 36 must sit in open court unless"— I want to emphasise this point— it considers that the interests of the administration of justice require it not to do so". The interests of the administration of justice include the cost of administration. Should not the provisions of Clause 37 apply?

Lord Williams of Mostyn

I do not regard cost as enormously persuasive when considering the interests of justice. I was saying, to some agreement across the Committee, that in some circumstances the interests of justice require a private hearing, but the overwhelming presumption should be that when someone applies for bail the public should have access.

Baroness Williams of Crosby

I thank the Minister for what he said about access to detention centre rooms. Can he say how long it is probable that people will be detained in prisons where public access is difficult to achieve?

Lord Williams of Mostyn

I cannot, except to say that, in principle, our approach is to look for discrete accommodation. If I have any more up-to-date material, I shall provide copies in the usual way. Belmarsh Prison, for instance, is high security. It has access from the prison to a court to which the public have usual access. That is not a perfect rejoinder; there is no perfect analogy because this has not previously occurred. I believe that with the appropriate safeguards identified by my noble friend Lord Clinton-Davis, this is a more civilised way of dealing with people who are in difficult circumstances.

Lord Hylton

I draw encouragement from the Minister's reply, in particular that there would be a presumption in favour of hearings in a normal courtroom. I take on board his remarks about flexibility. Perhaps I may draw him out further by referring to page 28, line 3, of the Bill. It deals with "particular premises or rooms." Does one understand that as the expression is in the plural there will be several rooms not only for the hearing but also for solicitors, advisers and their clients?

Lord Williams of Mostyn

The position is as I have already indicated. One cannot have these provisions unless appropriate arrangements are made for private confidential instructions to be taken by the legal representatives and an opportunity of private conversation in the usual way between the applicant and the person advising or representing him. That is what we have in mind.

Lord Hylton

I thank the Minister for that answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80 not moved.]

Clause 37 agreed to.

Lord Williams of Mostyn moved Amendment No. 80A:

After Clause 37, insert the following new clause—