HL Deb 19 July 1999 vol 604 cc744-802

House again in Committee.

Clause 38 [Power to grant bail]:

Lord Williams of Mostyn moved Amendment No. 80B:

Page 28, line 10, leave out from beginning to ("is") in line 14 and insert— ("(1) Before releasing a person on bail under section (General right to be released on bail), the court may require—

  1. (a) a recognisance or, in Scotland, a bail bond to be entered into, or
  2. (b) security to be given by the person bailed or on his behalf.

(2) The court may impose a requirement under subsection (1) only if it considers that its imposition is necessary to secure compliance with any condition to which bail granted under section (General right to be released on bail) will be subject as a result of subsection (3), (3A) or (3B).

(3) Bail granted under section (General right to be released on bail) by the Commission is subject to a condition requiring the person bailed to appear before it at a specified time and place.

(3A) Bail granted under section {General right to be released on bail) by a court or other appellate authority (other than the Commission) dealing with an appeal by the person bailed is subject to a condition requiring him—

  1. (a) to appear before the court or authority at a time and place specified by it; and
  2. (b) if the appeal is dismissed, withdrawn or abandoned, to appear before an immigration officer at such time and place as may be notified to him in writing by an immigration officer.

(3B) In any other case, bail granted under section (General right to be released on bail)").

The noble Lord said: In moving Amendment No. 80B, I shall speak also to Amendments Nos. 84, 85A, 86, 86A to 86F and 210C.

The purpose of the insertion of subsection (1) in Amendment No. 80B is to add to the range of alternatives to detention the option of granting bail subject to securities being given by the person bailed or on his behalf. This power to require security is consistent with the Bail Act 1976 as amended recently by the Crime and Disorder Act 1998.

I stress that this is an option only, not a requirement. It is quite likely that in the future people will be released on bail without monetary sureties or securities, but as an alternative to detention, the lodging of securities will be justified in some cases. I hope this will find favour with the Committee because it means that, given the additional safeguard of securities, some will be released who might otherwise have been detained.

Subsection (2) specifies that the court may impose a requirement under subsection (1) only if it considers imposition is necessary to secure compliance with the mandatory condition to appear in the future before the court or an immigration officer, as appropriate. This will prevent securities, recognisances or bail bonds from being required by the court unnecessarily or disproportionately.

Subsection (3), equivalent to current subsection (5), allows for a bail condition in Special Immigration Appeals Commission cases requiring a person to appear at a specified time and place before the commission.

The purpose of subsection (3A) is merely to ensure that a person bailed to appear before the appellate authority is also bailed to appear before an immigration officer, so that if the appeal is dismissed, withdrawn or abandoned that person remains subject to bail conditions until such time as further action may be taken by the immigration officer. Without this amendment, the person would have to be re-detained at the court, which might in some cases be unnecessarily harsh, or, alternatively, he would be free to leave, with the risk of avoiding enforcement action. Subsection (3B) is consequential.

The new clause provided for by Amendment No. 86F introduces powers of forfeiture of any security taken by the court under amended Clause 38. Forfeiture will be allowed only where the mandatory condition to appear at a specified time and place has been broken. It is regrettable of course that any amount should be forfeited, but bail in the absence of sanction becomes meaningless in some cases and therefore would undermine the effectiveness of what we propose. We hope that incidences of breach will be rare.

Importantly, the new clause also provides an opportunity to challenge any forfeiture where a person had reasonable cause not to appear. Where forfeiture is ordered, the amount of money forfeited need not be the full amount of the security given, as the court has a discretion—which I hope the Committee will welcome—to take any amount up to the total. It need not take any of the security at all if it thinks it appropriate. Amendment No. 210C ensures that any forfeited securities will be paid into the Consolidated Fund—not the Dome fund. I commend Amendments Nos. 86F and 210C to the Committee.

I turn now to Amendment No. 84. The courts will have a wide discretion regarding whether a recognisance or security should be taken from or on behalf of the detainee before bail is granted. Where a monetary surety or security is required, this must only be where the court considers that imposing it is necessary to ensure compliance with the requirement to appear. The court will ensure that the level of surety or security is reasonable in all the circumstances. It will obviously take account of the material circumstances of a detained person for these purposes. Only a small security may be necessary in respect of a person of very limited means. But I revert to the point made by my noble friend Lord Clinton-Davis earlier: these are matters for judicial decision; the judiciary is well able to make these determinations.

It should be borne in mind that there are those who look on bail securities or sureties as part of the cost of entry into the United Kingdom. I regret to say that sometimes such sums are catered for as part of a facilitation package. This is an example of the kind of further consideration to be borne in mind by the court when deciding what level of security or surety to set. I cannot therefore support this amendment.

The purpose of Amendment No. 85A is to refer to the new clause set out in our Amendment No. 80A, introducing a presumption of bail, as we have already discussed. This is because the power to release on bail under Part III is contained within the text of that new clause.

I cannot support Amendment No. 86. It is intended that the determination of the court should be made in English, as in criminal cases, to ensure that there is less likelihood of dispute later over what the court intended. I appreciate that this is a relatively small matter, but it is important. One has the experience of—I take at random—the Indian sub-continent, which has a large number of different dialects and sub-languages. It has proved very difficult sometimes to decide on precisely what was meant.

I stress that it is intended that where necessary an interpreter will be present at the hearing to explain the proceedings to the detainee fully, in a language that he understands. The court will notify the terms of any recognisance, security or bail bond, together with any other conditions imposed, in writing to the detainee and—again importantly—to his representative. Where necessary of course the interpreter will notify the detainee of terms and conditions orally in a language that he understands. I hope this will persuade the Committee that it is our firm intention that everyone leaving a hearing will leave with a clear understanding of what has been agreed.

Amendment No. 86A simply removes Clause 38(5) as the provisions of that subsection are now incorporated into the government amendment of Clause 38.

Amendment No. 86B replaces the existing subsection (7), but new Section 38(7), (7A) and (7B) have the same purpose. A new version of subsection (7) was required, first, to make reference to the new power to require a security to be given and, secondly, to ensure that the drafting of the subsection was consistent with the fact that monetary conditions will not always be imposed by a condition of bail.

This clause shall have effect where the court decides not to release a person on bail because the person could not at that time satisfy the conditions of bail. It will be able to set conditions which, when fulfilled, will lead to the person's release in the future. It might, for instance, take a person a few days to identify a surety required by the court. Subsection (7B) provides that once the person has satisfied these conditions he must be released.

Amendment No. 86C is to make sure that a person liable to detention but released on bail is in a no more advantageous position in respect of taking employment than he would have been if released on temporary admission.

A person granted temporary admission under paragraph 21 of Schedule 2 to the 1971 Act may be subject to such conditions as to residence, employment or occupation and reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer. If, on the other hand, the immigration officer decides that the person concerned should be detained but that person is subsequently released on bail, although he may be subject to restrictions as to residence or reporting to the police or an immigration officer, he may not be subject to restrictions as to employment or occupation. Subsection (8) corrects that anomaly by ensuring that the same restrictions as to employment may be imposed in respect of release on bail as can already be imposed in respect of temporary admission or release. It must be right that a person released on bail should not be at an advantage. Subsection (9) makes any restriction on employment under subsection (8) in respect of a person released on bail a condition of that bail. So if the bailed person were to be in breach, he would be liable to arrest under Clause 40.

Amendment No. 86D clarifies that a recognisance will be liable to forfeiture only if the person fails to appear at the specified time and place. Amendment No. 86E clarifies what is meant by the term "mandatory bail condition". I commend Amendments Nos. 86A to 86E to the Committee.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

I remind the Committee that if this amendment is agreed to, I cannot call Amendments Nos. 81 to 84 inclusive.

Lord Hylton

I saw the Government's amendments only at about 3 o'clock this afternoon. They may have been available before the weekend, but I was deeply involved in a family wedding.

I hope that the Government's amendments will substantially improve Clause 38, but given the: shortage of time in which to study them it is difficult to be certain of that. I tabled Amendment No. 84 because I felt that it would be a travesty of bail proceedings for the amount of bail to be set so high that the applicant would have no hope whatever of securing it. If an applicant has relatives, friends or a supporting community in this country, they may be expected to help to provide bail or recognisances. However, in the absence of such support, bail should be set at a sum that is reasonable in the circumstances of the individual.

When the Bill becomes law—and, if possible, before—I ask the Government to make the greatest possible use of voluntary organisations, including but not exclusively the Churches, to ensure that people who might otherwise be detained turn up at the places and times where they are required to show themselves. Such voluntary capacity has been greatly under-used in the past and should be much more fully employed in the future.

Baroness Williams of Crosby

I welcome Amendment No. 80B. Taken together with Amendment No. 80A, it shows that the Government are moving close to what we requested of them. We are grateful to the Minister. The noble Lord, Lord Hylton, may take reassurance from the answer that the Minister gave to his amendment when he said that the courts would bear in mind the capacity of the person seeking bail to meet any request for a recognisance. Many of us appreciate that there may have to be a recognisance, but it should be scaled to the capacity of the person concerned to meet it. We accept the Minister's assurance that the courts will consider that factor.

On Amendment No. 86, I accept the Minister's explanation of why the phrase "in a language he understands" may not always be able to be met. I ask simply for an administrative recognition that if notice is given in a language other than the one that the asylum seeker or refugee understands, it is important that it is given sufficiently far ahead to enable it to be interpreted for the person coming before the court. I realise that that is not an appropriate matter for an amendment but for instructions within the Home Office.

I also welcome Amendment No. 80B, especially subsection (2) which reiterates the general right to be released on bail, to which the Minister referred. For all those reasons, Members of the Committee may take reassurance from what the Minister said that we are moving towards protecting people's rights and liberties. For that, we are grateful.

Viscount Bridgeman

I seek clarification of Amendment No. 86, which I understand has not been accepted. The Minister gave a full account of the interpretation arrangements that would be available. Will they appear on the face of the Bill at a subsequent stage?

Lord Hylton

Before the Minister replies, may I refer to Amendment No. 86? The Minister drew our attention to the practice of the Indian courts where there are a multiplicity of languages. However, I would hope that the practice of our courts might be superior to the Indian practice and that every effort would be made to explain the situation to people in a language they understand.

Lord Williams of Mostyn

The noble Lord, Lord Hylton, misheard me. I simply pointed out, as I am entitled to do—as I believe the noble Lord, Lord Dholakia, will recognise—that on the Indian sub-continent, not in the Indian courts, there are many hundreds of different languages, sub-languages and dialects. That is why I suggested that the requirement to put in writing would in fact not be of any practical utility. The conditions must be notified in writing, including to the representative as well as the applicant, and then it will be for the interpreter to tell the applicant exactly what they mean in a language the applicant will understand. I am happy to correct that point.

I do not anticipate that provisions relating to interpreters should be placed in the Bill. I have given the undertaking on our intentions.

I take entirely the point made by the noble Lord, Lord Hylton, about the voluntary organisations. I have paid tribute to them today and on many previous occasions. The noble Lord may take some comfort from the fact that Amendment No. 80B contains in subsection (1)(b) the important words, security to be given by the person bailed or on his behalf. There is no reason why voluntary organisations rightly engaged with the welfare of applicants should not enter into securities on their behalf. I welcome the noble Lord's comments about the role of the voluntary organisations.

I take entirely the point made by the noble Baroness, Lady Williams of Crosby. All securities, recognisances or bail should be set on a proportionate basis, as they are at the moment. I am happy to say that we give administrative recognition to the need to have anyone leaving a court or tribunal knowing what has been done. It is simply that I do not believe it is practicable or, in the end, of utilitarian value to insist that every language in the known and discovered world should be used to write it all down. It is different in Wales, but of course we have Welsh language legislation.

Lord Hylton

I wish to press my point about the voluntary organisations. Can the Minister assure me that they will not always be required to put up cash and risk losing their money? Could it be made clear through guidance or in some other manner that the best endeavours of the voluntary organisation will be taken into account when it is a question of securing that a given person appears when they are supposed to, either before a court or before an immigration officer?

9 p.m.

Lord Williams of Mostyn

That will be covered, first, under the existing regime on security and recognisance; and, secondly, in the Bill. Anyone who is liable to forfeiture of any sum is entitled to make representations. I have never understood the obligation to make sure that someone turns up on time and at the right place to be absolute. It may well be that the person concerned is ill or the bus has broken down or even that the bus lane from Heathrow to London is somewhat congested.

On Question, amendment agreed to.

[Amendments Nos. 81 to 85 not moved.]

Lord Williams of Mostyn moved Amendment No. 85A:

Page 28, line 19, leave out ("may be granted") and insert ("granted under section (General right to be released on bail) may be").

On Question, amendment agreed to.

[Amendment No. 86 not moved.]

Lord Williams of Mostyn moved Amendments Nos. 86A to 86C:

Page 28, line 22, leave out subsection (5).

Page 28, line 27, leave out subsection (7) and insert— ("(7) Subsections (7A) and (7B) apply if, on a reference under section 36. the court has power to release the detained person on bail but is not required to do so by section (General right to be released on bail).

(7A) The court may, instead of releasing him—

  1. (a) fix the amount of any recognizance, bail bond or security to be taken on his release on bail (including the amount in which any sureties are to be bound), and
  2. (b) settle the terms of any conditions to be imposed on his release on bail.

(7B) The person concerned must be released on bail on the recognizance or bond being taken, or the security being given."). Page 28, line 32, at end insert—

("(8) A person released on bail under section (General right to be released on bail) is to be subject to such restrictions (if any) as to his employment or occupation while he is in the United Kingdom as may from time to time be notified to him in writing by an immigration officer.

(9) Any restriction imposed on a person under subsection (8) has effect for the purposes of this Part as a condition of his bail.").

On Question, amendments agreed to.

Clause 38, as amended, agreed to.

Clause 39 [Forfeiture]:

Lord Williams of Mostyn moved Amendments Nos. 86D and 86E:

Page 28, line 33, leave out from ("court") to ("it") in line 34 and insert ("that a mandatory bail condition has been broken,").

Page 28, line 38, at end insert— ("() "Mandatory bail condition" means a condition—

  1. (a) to which bail granted under section (General right to be released on bail) is subject as a result of section 38(3), (3A) or (3B), and
  2. (b) in relation to which the court has taken a recognizance under section 38.").

On Question, amendments agreed to.

Clause 39, as amended, agreed to.

Lord Williams of Mostyn moved Amendment No. 86F: After Clause 39, insert the following new clause—

    cc751-802
  1. FORFEITURE OF SECURITIES 25,742 words