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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

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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Amendment, by leave, withdrawn.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--


(" .--(1) On a reference under section 36, the court must release the detained person on bail unless--
(a) subsection (2) or (3) applies; or
(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--
(a) fail to comply with one or more of the conditions of bail or of any recognizance or bail bond;
(b) commit an offence while on bail which is punishable with imprisonment;
(c) be likely to cause danger to public health; or
(d) alone or with others, be a serious threat to the maintenance of public order.
(3) The detained person need not be granted bail if the court is satisfied that--
(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;
(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;
(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;
(d) he is required to submit to an examination by an immigration officer under paragraph 2 or 2A of

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Schedule 2 to the 1971 Act and the officer is not in a position to decide--
(i) whether, and if so how, to exercise the powers conferred by paragraph 21 of that Schedule;
(ii) whether to grant him leave to enter, or remain in, the United Kingdom; or
(iii) whether to cancel his leave to enter the United Kingdom under paragraph 2A(7); or
(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

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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

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into detail in relation to the suggestion that I have made but, given the opportunity, perhaps an appropriate amendment can be made on Report.

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