HL Deb 17 July 2002 vol 637 cc1233-43

3.10 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Filkin.) On Question, Motion agreed to.

House in Committee accordingly.

[THE CHAIRMAN OF COMMITTEES in the Chair.]

Clause 56 [Detention centres: change of name]:

The Lord Bishop of Derby

moved Amendment No. 170A: Page 30, line 40, after "persons" insert "over the age of eighteen The right reverend Prelate said: On behalf of the right reverend Prelate the Bishop of Hereford, I rise to speak in support of the amendment. It arises on grounds of principle as well as being informed by the casework undertaken by the staff and volunteers of the Churches Commission for Racial Justice. The commission acts on behalf of all the mainstream Christian denominations through Churches Together in Britain and Ireland. The CCRJ shares a coalition of concern with other children's charities, including the Save the Children Fund.

The amendment aims to ensure that children and their families are not housed in detention or removal centres by redefining the centres to exclude children. It assumes that, as the Government would always seek to keep families together, no families with children would be detained.

Based on experience, there is a strong belief among children's charities and refugee organisations that detention centres can never provide the most appropriate and supportive environment for vulnerable children. In earlier debates it has been pointed out that the well-being and development of the child should be a primary and not a secondary consideration. In other words, if we believe that living in certain institutional settings may damage children, then it is indefensible to place them in such settings.

The Home Office considers that prison is not the best environment for young children and therefore babies are taken from their mothers by the age of six months. If prison is not the best environment for these young children, to the extent that the Government think it preferable to separate them from their mothers, then why does the same government department believe that detention centres are an acceptable environment for children seeking asylum?

We know that such children are particularly vulnerable. At best, they will have suffered upheaval and loss. At worst, they will have been involved in unimaginable horrors in situations of war and persecution. Our compassion for their circumstances, rather than the fraught politics of asylum policy, should shape the way we seek to care for them. Indeed, placing children in institutionalised settings that are not focused on meeting their needs is likely to contribute to and intensify their existing problems.

The policy of detaining families with children represents a recent shift in government policy. Until last year, the Government were apologetic about the detention of children, saying that as a rule it was undesirable and necessary only in exceptional circumstances. But they have now greatly widened the criteria for detaining families. The White Paper preceding this Bill endorsed the policy of detaining children in asylum-seeking families prior to removal. It also made a vague, open-ended statement about detention in other circumstances "where necessary".

But there has been no explanation from the Government as to why this change of policy is necessary. Indeed, the Home Office has conceded that there is no statistical evidence to show that families with children are more likely to abscond or less likely to make a successful claim for asylum. I invite the Minister to explain why the Government now believe that it is necessary to increase the detention of families with children. Furthermore, in the light of the new policy, what legal safeguards will be in place to prevent immigration officers from acting in an arbitrary manner when making decisions on whether to detain families?

The proposals to focus on the use of detention-for-removal will mean that even more children and their families are detained. That is in the context of the UK detaining more people seeking asylum than does any other country in Europe. The Government do not appear to be responding to the cautionary lessons emerging from Yarlswood. There, vulnerable children were incarcerated with distressed and desperate adults. In such situations, would the Government still argue that the needs of the child had been put first?

Detention also gives rise to a range of child protection concerns. There are many risks to child safety in institutional care, given the power and control that staff have in such settings. Furthermore, children and families who try to avoid living in such centres will become part of a hidden population whose whereabouts can be difficult to track. In turn, that makes it even more difficult to promote and protect the rights and needs of the child.

Recognising that the concerns of the Churches Commission for Racial Justice are widely shared across the voluntary sector, it should not be suggested that these are the arguments of unrealistic idealists. They are concerns arising from practitioners. They resonate with the United Nations Convention on the Rights of the Child. That convention helps to provide a framework of principles for our treatment of children. The Government have signed up to that convention, which states that the best interests of the child should be a primary consideration in all policies affecting children. I should be interested to know whether, in the face of opposition from all the major children's charities, the Government believe the detention of children and young people to be in their best interests.

Detention also gives rise to serious concerns in respect of violations of other articles of the UNCRC, in particular the duty on the state not to discriminate, the duty to ensure to the maximum extent possible the development of the child, the duty to enable freedom of association and the duty not to interfere with privacy and family. Can the Minister tell the Committee what is the legal advice on compliance with the convention in respect of children in detention centres?

In conclusion, I reiterate the view that detention facilities cannot afford children the care and protection they need. On the contrary, they may have a serious negative impact on the child's physical and emotional health and well-being. I would urge the Government to revisit and revise their policy of sanctioning and expanding the detention of families with children. The evidence to date suggests that it is a step neither necessary nor proportionate. I beg to move.

3.15 p.m.

Lord Avebury

Before turning to the amendment itself, perhaps I may ask the Minister who is to respond initially whether he has seen a report from Geoff Meade, the European editor of PA News, about remarks said to have been made by the Secretary of State in connection with his meeting with his French opposite number, Nicholas Sarkozy, concerning the issue of the closure of the Sangatte centre in Calais. According to the report, Mr Blunkett said that he had, already made provision for [this] Bill to be speeded up, short-cutting the usual procedures, so that it could be in place by mid-October". Later the right honourable gentleman is said to have remarked that, if Britain could send 'early signals' to France about the Bill's progress and possible completion in July, London and Paris may be in a position at the September meeting in Frethun to set an early deadline for closure before the end of this year, rather than in the first quarter of next year". I can hardly believe that the Secretary of State will have made those remarks, but it is important that noble Lords should be given an early repudiation of what PA News has said so that we do not have to cross swords with the Secretary of State over interference with proceedings in your Lordships' House, which of course would be highly improper. I can only think that there must have been a misunderstanding between the Secretary of State and the journalist who reported him in these words. The matter should be cleared up at the earliest possible stage.

I turn now to the amendment. The right reverend Prelate was correct to mention the United Nations Convention on the Rights of the Child. Can the Minister confirm whether the Government have any intention of continuing with the reservation on Article 22 which allows them to take these steps, or whether we should become full signatories to the convention, as are most other states that have signed it. The reservation is harmful to our image abroad and to our position as leaders in championing human rights around the world.

As the right reverend Prelate has already commented, the children put into these detention centres have not broken any laws. Their only so-called "crime" will be that their mother or father has claimed asylum or otherwise sought to remain in the United Kingdom. Yet it is now the intention of the Secretary of State to detain these children, along with their parents, for what may be an indefinite period of time. We all know of instances where people have been detained for several months on end.

As far as I am aware, the only other children in the United Kingdom whose liberty is restricted in a similar way are children who have been brought before a criminal court, or who are subject to an order tinder the Mental Health Act 1983, or those who have had a secure accommodation order made by a family court.

I refer the Minister to the official guidance given in the Children Act 1989 Guidance and Regulations Volume 1 Court Orders in relation to the making of secure accommodation orders for children. That guidance states: Restricting the liberty of children is a serious step which must be taken only when there is no genuine alternative which would be appropriate. It must be a 'last resort' in the sense that all else must first have been comprehensively considered and rejected". Furthermore, under those provisions children can only be placed in secure accommodation for a maximum of 72 hours in any 28-day period unless a court order is obtained. So the Government have to justify detaining children as a first as opposed to a last resort, as they plan to do under the Bill.

There is also the question of the incompatibility of these provisions with the European Convention on Human Rights. Article 5(1)(d) of that convention only permits, the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority". In Re K (Secure Accommodation Order: Right to liberty) [2001] 1 FLR 526, the learned judge, Dame Elizabeth Butler-Sloss, stated: In each case where a secure accommodation order is applied for, the English court, at any level, must have the requirements of Article 5(l)(d) in mind when considering the relevant criteria, and thereby the compatibility of the section with the Convention right". So the Government have an obligation to explain to the Committee how the detention of children in these centres is compatible with their duties under the Human Rights Act and how they came to make a statement on the face of the Bill that there was nothing in it that was not compatible with our obligations under the convention.

Lord Judd

The right reverend Prelate and the noble Lord, Lord Avebury, have argued the case for their amendment very fully and effectively. However, I should like to know the thinking of my noble friend the Minister on one specific point. As I understand it, the Government's position is that people in these places could conceivably—despite being there—be accepted as legitimate asylum seekers. If it should prove that they are legitimate asylum seekers, God knows what traumas and awful experiences such families and children will have been through already. How can we contemplate putting them in a position of anxiety and stress, which will inevitably be found in such centres, after all they have been through? How can my noble friend deal with that point?

The Earl of Sandwich

I, too, support the right reverend Prelate in his reasonable amendment which seeks to restrict the use of detention to adults, ensuring that families with children under 18 are not kept in detention. It is the view of the Refugee Children's Consortium and many others that detention centres are not appropriate for vulnerable children. We forget sometimes that we are talking about a vulnerable category of children who have committed no offence and whose parents have committed no offence but are merely awaiting the outcome of an application. The noble Lord, Lord Judd, implied that a very small number of children are affected. In fact, they constitute a substantial number of those in detention.

Under successive UN conventions these children should receive more protection than other children. I was working with Save the Children soon after the UN convention was passed and signed and I remember how strongly children's charities felt at that time about those rights as they passed into our own legislation in the form of the Children Act 1989. Those organisations now say that the Bill, unamended, could be in breach of no fewers than 12 articles of the convention.

As the right reverend Prelate said, it is well established under the Children Act that the best interests of the child should be a primary consideration. So why have MPs and Peers had to repeat this amendment on children in various asylum Bills over the 13 years since that Act was passed?

Like the noble Lord, Lord Avebury, I hope that the Minister will take the opportunity, yet again, to explain the Government's reservations about Article 22 of the UN Convention on the Rights of the Child, which are beyond most people's comprehension. Phrases such as "not normally detained", "used sparingly", "regrettable" and "most exceptional" will not do. If the Minister repeats those phrases today he will not satisfy those who work with these children and will only bring us back to the same arguments at Report stage.

When discussing the issue of bail for immigration detainees on Second Reading, I referred to the case of a mother who was detained with her sick 18 months-old child for four months pending removal and a judicial review. As the right reverend Prelate said, the fire at Yarl's Wood is another recent example of the risks associated with such a policy. We now know from our debates on Monday that detention means detention and rarely removal. The holding of children for that length of time is both immoral and against international law.

Lord Hylton

For a long time now the theory has been that detention should be used only in the minimum necessary number of cases. When the Minister replies, will he say what has changed since 1999? Will he also give an explanation of what is meant by "exceptional circumstances"? Do not the Government agree that daily reporting would he far more satisfactory than either the detention of children or, if that is to be avoided, the splitting up of families? Both procedures are totally deplorable and should be avoided at all costs.

Lord Brooke of Sutton Mandeville

I owe an apology to my noble friends on the Front Bench. Such has been the frenzied progress on the Bill that I fear an act of politeness has failed me. When I was a pairing Whip the late Lord Braine once gave me an excuse that he had missed a Division because he had been in a Hindu temple meditating and the matter had slipped his mind. I am in the same condition on this occasion.

I notice that the party which I share with my Front Bench has not put its name to this amendment. I am not clear whether my noble friends believe that Mr Malins received a satisfactory answer in Standing Committee E in the Commons on 14th May at cols. 23573X2013;236 of Hansard or whether the circumstances in which the issue was raised, which concerned detention by the Secretary of State, referred to a different case. It may be that I shall learn more about our own attitude before the Minister responds to the debate.

Baroness Williams of Crosby

I do not normally take part in the Committee stage of this Bill but, before the Minister replies, I wish to speak to the issue on which the debate concluded on Monday. This is the first opportunity I have had to do so. I believe that it raises serious constitutional issues.

We were discussing at that point in Committee the issue of the naming of the centres in which these children might be detained. The noble Baroness, Lady Anelay, raised the issue of whether some centres have already been renamed as removal centres, with official headings on letters to that effect, even though there has been no approval by this House or Parliament as a whole about that change of name.

If we are discussing a crucial amendment about the detention of children—which is an appalling act for a modern, civilised state—we should at least consider it in the context of what kind of centre these children are being sent to. We now understand that under the direction of the Home Secretary—which, with great respect, sounds more like an action of President Putin than that of the Parliament of the United Kingdom—these changes have been made.

The noble Lord, Lord Bassam, promised the House an explanation and said that we would be allowed to see documents. I apologise, in particular to the noble Baroness, Lady Anelay, for intervening. However, it raises grave constitutional issues if a Minister acts as though legislation has been passed when it has not. I hope that the Minister will be kind enough to offer an explanation as we proceed with the amendment.

3.30 p.m.

Baroness Anelay of St Johns

The right reverend Prelate has done us a favour in bringing forward this important amendment, and my noble friend Lord Brooke of Sutton Mandeville always does me a favour when he intervenes, as on this occasion. Indeed, when my honourable friend Mr Matins spoke to these matters in another place and when we looked in detail at the Minister's answers in Hansard, we determined that we were not fully satisfied with that response. We felt that the Government needed to be pressed more closely in this place to justify their policy.

A couple of weeks ago, I met representatives of the Refugee Children's Consortium. I was struck by their deep concern over the Government's continuing policy of detaining families with children. I noted their strong objection to the detention of children, based on the belief that detention centres cannot afford children the care and protection they need or uphold their rights under human rights law. They drew attention to the interference with the child's rights to freedom, to a normal social life and to education. As the consortium rightly pointed out, detention facilities are never the best environment for children and may have a serious negative impact on their physical and emotional health and well-being.

These are sensitive issues to which the Government must address themselves. They may provide justification which persuade us. But this is the time and the place to press the Government. If we are unable to reach a conclusion today, I am sure that this will continue to be an issue. I am willing to give the Government the opportunity to persuade me. I shall listen carefully to their reply.

Lord Filkin

Before my noble friend responds to the amendment, perhaps I may respond to the question raised by the noble Lord, Lord Avebury.

I have the Home Office press release before me. I do not have the PA report referred to. It is clearly desirable that the Bill is passed as soon as is practicable, consistent with parliamentary consideration and scrutiny. It will be clear to all Members of the Committee that that will not be before the Summer Recess.

Lord Bassam of Brighton

Before I deal with the amendment, I want to pick up the point quite properly raised by the noble Baroness, Lady Williams, about the naming of removal centres. I gave a clear undertaking the other day that I would write to Members of the Committee on the matter. That remains the case. I am not in a position to provide a response today, but we shall provide the response that was properly requested. As I believe I said when the matter was raised previously, I will ensure that all Members of the Committee who have taken part in the discussion will be availed of a copy of the correspondence.

This has been a useful debate. It has enabled us to focus on some important issues and some tough decisions that often have to be made in the exercise of immigration and asylum legislation.

The amendment to Clause 56 moved by the right reverend Prelate would mean that removal centres could not be used to hold detained persons under the age of 18. Let us be quite clear about that. However, it would not prevent the detention of those under 18 in other places designated for the purposes of detention under the Immigration Act 1971. I refer, for example, short-term holding facilities.

Our current policy on the detention of minors is clear. It is, of course, very regrettable to have to detain those who are under 18, but there are two limited sets of circumstances in which we may decide to do so. The first is where it is considered necessary in line with our policy to detain a family with children. In such a case, it is surely better for the children to be detained with the parents rather than to separate the family, which is likely to cause the children needless distress and anxiety. To suggest that in that case families should not be detained is, frankly, unrealistic. They may need to be detained while their identities or the basis of their claim are established, because they are unlikely to comply with the terms of temporary admission or release, to effect their removal, or as part of the fast-track asylum process at Oakington reception centre.

Secondly, there are exceptional instances where it is necessary to detain an unaccompanied minor while alternative care arrangements are made. The detention would normally be just overnight and in most cases with appropriate care facilities. A minor arrives alone late at night at a port of entry, for example, without family or adult relatives to go to. I am sure we can imagine circumstances arising from time to time fortunately, not too frequently, but they do arise—in which immigration officers and staff have to make hard decisions.

In such cases, we believe that it is right that the minor should be held until alternative care arrangements can be made, either with relatives or with the local social services department. The limited circumstances in which minors may be detained are sensible and reasonable—and fair for those who may be affected. If a young person comes to this country with no knowledge or understanding of the language and is confronted by officialdom, there may well be a strong case for holding that person in secure accommodation until someone can be brought there who has a knowledge and understanding of the language and who can explain what is likely to happen to that young person. In those circumstances, it would be foolish not to have some secure accommodation available.

A number of questions arose during the debate. I stress that the number of people affected at any one time is fairly limited. The total detention capacity is just 2009. Excluding Oakington, there are approximately 150 family beds. These are usually organised in family rooms with four beds. Therefore, the total number of families is likely to be no more than 30 to 40 at any one time, including parents. Therefore, it must be plain that the vast majority of families are not detained.

The right reverend Prelate the Bishop of Derby raised the important issue of child protection. Every removal centre with family accommodation has to have a child protection policy in place, and appropriate training is provided to staff. Policies and training programmes have been carefully drawn up in consultation with experienced members of staff from local authorities and the NSPCC. Staff take child protection issues very seriously indeed.

We believe that we are acting within the spirit of our human rights and UNCRC obligations. Questions were raised by the noble Lord, Lord Avebury, and others about compatibility with Article 5. Article 5(1)(d) specifically permits the detention of a minor by lawful order for the purpose of education supervision and his or her lawful detention for the purpose of bringing him or her before the competent legal authorities. Article 5(1)(f) expressly permits the detention of a person to prevent his effecting an unauthorised entry to the country or of a person against whom action has been taken with a view to deportation.

The detention of children, regrettable though it is, is necessary from time to time. It is within the scope of Article 5(1)(f) and is not prevented by Article 5.

We believe that we are exercising our powers in a proportionate, reasonable and fair-minded way. We make full provision to protect the welfare and interests of the child. The circumstances in which detention is effected are limited and are related to the two areas that I outlined earlier. For those reasons, I ask the right reverend Prelate to consider withdrawing the amendment.

Lord Avebury

The noble Lord referred to the best interests of the child. Does he agree that they are best taken into consideration at the outset of the process, not after a decision to detain has been made? Does he also agree that if a child arrives late at night, as in his example, the local authority social services department would be perfectly capable of dealing with the matter, just as it would with any child who was not being looked after by a guardian or adult and who might need its care?

Lord Hylton

I accept nearly all of what the Minister said about unaccompanied children arriving at ports. Nevertheless, will he respond to my suggestion that daily reporting by parents with children is far preferable to detention? On the important constitutional point raised by the noble Baroness, Lady Williams of Crosby, about the change of name, will the Minister be kind enough to place a copy of his reply in the Library so that it is available to other Members in addition to those who took part in that debate?

Lord Bassam of Brighton

Of course a copy of that correspondence will be placed in the Library so that it is on the record and readily accessible to other noble Lords. To answer the point made by the noble Lord, Lord Avebury, we have to take the welfare and interests of the child into account at all times during the process. That has to be a primary consideration.

However, I ask the noble Lord to contemplate this point. However generous a spirit we have about asylum seekers, I am sure that the noble Lord accepts that some of them will be removed from this country at the end of the process because they are fundamentally in breach of our laws and regulations and are outwith the asylum process. They are illegal immigrants to this country. Some people caught within that process will attempt to abscond from the lawful authority. From time to time, children will he involved with those adults. Hard though those decisions may be, it is right that we have to place such people within secure accommodation and it is in the interests of the welfare of their children that they remain with them, so that at least the children are with adults whom they know and recognise—their family and their immediate kith and kin. Difficult though those decisions are, they have to be taken.

Of course the best advice will be taken from those involved in the welfare and care of children in local authorities. As I made plain at the outset, the desire of immigration officials is to ensure that early contact is made with social services so that they can be introduced to the situation, offer their best advice and make a proper and full assessment.

Lord Hylton

Will the noble Lord reply to my suggestion about reporting by parents with children who would otherwise be detained?

Lord Bassam of Brighton

If the assessment is that the family unit presents no risk of absconding, those sorts of reporting arrangements may well be put in place. I cannot predict that that will always be the case, because it may not be. Those judgments have to be made by those most immediate to the case—the case officers and those handling the difficult circumstances. It is best left to their discretion. We cannot easily prescribe it here in the comfort of a debating Chamber.

The Lord Bishop of Derby

I thank the Minister for his reply. I am encouraged that he emphasised the exceptional and short-term nature of such arrangements. I urge that that will turn out to be the case. It was said in a recent letter and in answer to a parliamentary Question that there is no statistical evidence or reason for increasing the detention of families. I hope and urge that it will remain an exceptional provision. In the light of the Minister's reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin

I beg to move that the House be now resumed for the Statement.

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

House resumed.