HL Deb 19 July 1999 vol 604 cc724-8

(" .—(1) On a reference under section 36, the court must release the detained person on bail unless—

  1. (a) subsection (2) or (3) applies; or
  2. (b) the court has imposed a requirement under section 38(1) which has not been complied with.

(2) The detained person need not be granted bail if the court is satisfied that there are substantial grounds for believing that if released on bail he would—

  1. (a) fail to comply with one or more of the conditions of bail or of any recognizance or bail bond;
  2. (b) commit an offence while on bail which is punishable with imprisonment;
  3. (c) be likely to cause danger to public health; or
  4. (d) alone or with others, be a serious threat to the maintenance of public order.

(3) The detained person need not be granted hail if the court is satisfied that—

  1. (a) he is or has been knowingly involved with others in a concerted attempt by all or some of them to enter the United Kingdom in breach of immigration law;
  2. (b) he is suffering from mental disorder and his continued detention is necessary in his own interests or for the protection of any other person:
  3. (c) he is under the age of 18 and, while arrangements ought to be made for his care in the event of his release from detention, no satisfactory arrangements have been made;
  4. (d) he is required to submit to an examination by an immigration officer under paragraph 2 or 2A of 725 Schedule 2 to the 1971 Act and the officer is not in a position to decide—
    1. (i) whether, and if so how, to exercise the powers conferred by paragraph 21 of that Schedule;
    2. (ii) whether to grant him leave to enter, or remain in, the United Kingdom; or
    3. (iii) whether to cancel his leave to enter the United Kingdom under paragraph 2A(7); or
  5. (e) directions for his removal from the United Kingdom are in force.

(4) For the purposes of this section, the question whether an offence is one which is punishable with imprisonment is to be determined without regard to any enactment prohibiting or restricting the imprisonment of young offenders or first offenders.

(5) "Immigration law" means any provision of the Immigration Acts or any similar provision in force in any part of the British Islands.

(6) The Secretary of State may by order amend subsection (2) or (3) by adding to or restricting the circumstances in which the subsection applies.").

The noble Lord said: I propose to introduce the amendment briefly because it has received general approval. It arises substantially from helpful conversations between the noble Baroness, Lady Williams, the noble Lord, Lord Dholakia, and myself when I promised to give careful thought to the drafting of the amendment. It speaks for itself.

Subsection (1) provides an onus to release by reference under Clause 36 unless subsections (2) or (3) apply or there has been a breach of Clause 38(1). The triggering acts are specified under subsection (2)(a) to (d). In subsection (3) there is no requirement for bail if paragraphs (a), (b), (c) and (d) are fulfilled or, (e): directions for his removal from the United Kingdom are in force".

Subsections (4) and (5) are self-explanatory. Subsection (6) gives the Secretary of State the power to amend subsections (2) or (3) by adding or restricting circumstances. I know that one's reward is not normally in this world but hereafter, but we have met everything which the representations wanted. I hope that the amendment will meet with the universal acclamation of the Committee. I beg to move.

Lord Avebury

I am sorry to have to enter a slightly discordant note. The first criteria in subsection (2) refers to: fail to comply with one or more of the conditions of bail or of any recognizance or bail bond". As Members of the Committee may be aware, that is always quoted by immigration officers in declining to give temporary admission. They state that in their opinion the individual concerned is unlikely to comply with one or more of the conditions of bail or of any recognizance or bail bond. If it is simply down to the opinion of the immigration officer, we have moved on no further. The unsupported opinion of the immigration officer will carry weight in determining whether bail is granted and the court will not go behind that opinion and ask why it is held. If that were the case, no more people would be released than at present. The use of the bail provisions would therefore be nugatory.

Lord Clinton-Davis

It is for the court to say, which the noble Lord, Lord Avebury, omitted to mention. The situation is no different from that in the criminal courts. Often, such an objection is raised by the police and a magistrate or another judge will take appropriate notice based on the evidence or not. I do not know what more the Government can do than to insert that saving provision.

Earl Russell

I am encouraged by the insertion of the words "substantial grounds" in subsection (2). They will have to appear to be substantial to a court and I hope that the Minister will be able to reassure us further.

However, I am concerned about subsection (3)(a): he is or has been knowingly involved with others in a concerted attempt by all or some of them to enter the United Kingdom in breach of immigration law". I should have been happier if the Minister had used the words "immigration or asylum" because it has been commonplace in our debates that what is unlawful entry in terms of immigration is lawful and normal entry in terms of asylum. I am sorry to look a gift horse in the mouth, but it would be helpful if the Minister could assist us just a little further.

Lord Dholakia

I thank the Minister for being kind enough to see us at short notice last week to discuss the amendment. We welcome the provision. I shall be brief, but I want to raise aspects, particularly of subsection (3), which are unnecessary. The first relates to those suffering from mental disorder. That is obviously lifted from paragraph 30 of Schedule 2 to the 1971 Act, which predates the 1983 Mental Health Act. The problem is that if someone is suffering from a mental disorder to such a degree that he is a risk to himself or others, it would be far more appropriate for that person to be dealt with under the Mental Health Act rather than Schedule 2 of the Immigration Act.

Secondly, under the Children Act, a duty is placed on the local authority to make inquiries and take appropriate steps to provide care for the child where it has reasonable cause to suspect that a child found in its area is suffering or is likely to suffer significant harm. Could not such a provision be used instead of that specified under subsection (3)(c)?

Subsection (3)(d) relates to those whose cases are still being investigated. The provision is drafted so widely as to catch almost anyone arriving in the UK. We accept that it may be necessary to conduct further investigations into a person's identity, but it is unlikely that such an investigation will be resolved after several days. If the immigration service cannot carry out its investigation due to lack of co-operation from the detainees, the decision to maintain detention could easily be justified under subsection (2)(a).

Finally, the removal direction could potentially cover a large number of asylum seekers and others. We accept that it may be the case that a person is unlikely to comply with a removal direction. If that is the case, the situation is better dealt with under subsection (2)(a) and compliance with any removal direction may be made a condition of bail. I do not expect the Minister to go into detail in relation to the suggestion that I have made hut, given the opportunity, perhaps an appropriate amendment can be made on Report.

Baroness Williams of Crosby

Once again I thank the Minister. Treasure in heaven requires to be burnished only a little in order to achieve the delights that he would like us to see. We would like to see reference to other Acts in relation to voluntary cases, particularly mental disorder cases, which may help to identify more closely the cases that the Minister has in mind. We are extremely grateful to him.

Lord Renton

Having heard three noble Lords and one noble Baroness from one party I wonder whether I dare rise to my feet.

Subsection (5) reads: 'Immigration law' means any provision of the Immigration Acts —that is clear enough— or any similar provision in force in any part of the British Islands". There was a time when the whole world considered that the whole of Ireland was part of what was called the British Isles or the British Islands. Presumably, since the Irish Free State became an independent country it will not accept the proposition that it is part of the British Islands. Therefore, this provision refers to the United Kingdom, the Channel Islands and the Isle of Man only. Technically, I believe that should be the position, but the matter should be clarified.

Lord Hylton

Like other noble Lords, I am grateful to the Government for bringing forward this new clause. However, there are one or two points that still ought to be raised.

One concerns subsection (2)(c), which reads: be likely to cause danger to public health". That may lead one to consider that anybody entering the country who may be HIV positive or suffering from AIDS or another serious communicable disease should remain in prison. I noted what the noble Lord said about substantial grounds, but perhaps it may be better to put on the face of the Bill that the substantial grounds in this instance must at least be supported by a doctor's certificate.

I now turn to subsection (4), which seems to be capable of including young offenders and first offenders. Therefore, that may be a bad omen for Amendments Nos. 114 and 115 which seek to prevent the detention of persons under the age of 18. I look forward to the comments of the noble Lord.

Lord Clinton-Davis

With the greatest respect, to a court substantial grounds are grounds supported by evidence. This is not something about which a court will be unconcerned. I would have thought that it would be much better to leave the provision as it is. In relation to causing danger to public health, I would have thought it was better that that is included in the matters that the court should consider, subject to the proviso that there are substantial grounds, as already stated, and that there is evidence to support that view.

Viscount Bridgeman

On this side we are in agreement with the basis of the amendment, subject to the request of the noble Baroness, Lady Williams.

Lord Williams of Mostyn

This is positively the last time I attempt to be helpful!

My noble friend Lord Clinton-Davis has put his finger on the point. One needs to look only at the wording to see that there is a presumption of release. That presumption need not be given effect if the court is satisfied that there are substantial grounds.

If someone makes an assertion of an opinion, the simplest thing to do if you are appearing for someone who is applying for bail is to cross-examine as hard, as bitterly and as viciously as possible to see whether there are any substantial grounds. With great respect, that is why the court is there. I put that point similarly in relation to a doctor's certificate. Magistrates are judicial officers and do not simply accept assertions.

I take the point about mental disorder and the Children Act. I shall look at that. Just before breaking for dinner, I am happy to be able to trump the noble Lord, Lord Renton, because the phrase "British Islands" is defined, as he will remember, in the Interpretation Act and that definition does not include the Republic of Ireland.

Perhaps I may be allowed one last self-indulgence before we break. If I accede to the seductive invitation of the noble Earl, Lord Russell, and put in the words "or asylum", many people would be caught whom he does not want caught.

On Question, amendment agreed to.

Lord Burlison

I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.40 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.