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Lord Falconer of Thoroton moved Amendment No. 40:

Page 24, line 2, at end insert--
(“( ) neither he nor his representative was permitted, under the law applicable to the place where A embarked on the journey to the United Kingdom, to require A to produce to him when embarking the required document or documents;").

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On Question, amendment agreed to.

[Amendment No. 41 not moved.]

Lord Falconer of Thoroton moved Amendment No. 42:

Page 24, line 30, at end insert--
(“(8A) The Secretary of State may by order provide that this section is not to apply in relation to passengers arriving in the United Kingdom on a train who embarked on the journey to the United Kingdom--
(a) in a country specified in the order; or
(b) at places so specified within a country so specified.
(8B) The Secretary of State may make an order under subsection (8A) only if he is satisfied that there is in force between the United Kingdom and the country concerned an agreement providing for the operation of UK immigration control in that country or for the checking of passports and visas there.").

On Question, amendment agreed to.

Clause 36 [Power to detain vehicles etc. in connection with charges under section 34]:

Lord Falconer of Thoroton moved Amendment No. 43:

Page 25, line 28, after (“expenses;") insert--
(“( ) there is no significant risk that the charge and any connected expenses will not be paid;").

On Question, amendment agreed to.

[Amendments Nos. 44 and 45 not moved.]

Clause 38 [Bail hearings for detained persons]:

Lord Falconer of Thoroton moved Amendment No. 46:

Page 27, line 25, leave out (“notifies the Secretary of State, in writing,") and insert (“has given to the Secretary of State, and has not withdrawn, written notice").

The noble and learned Lord said: My Lords, in proposing Amendment No. 46, I must thank the noble Lord, Lord Cope, who, during the Committee stage, proposed an amendment which would have required the Secretary of State to make a second reference even in those cases where the detainee had waived his right to a first hearing. At the time my noble and learned friend Lord Williams made it clear that this had always been our intention. I am pleased to tell the House that, to make the position clear, the Secretary of State is required, by this amendment, to secure a reference to the court if at any time the detainee notifies him, in writing, that he no longer wishes to waive his right to a routine bail hearing.

Turning to Amendments Nos. 48 and 51, it must surely be right that a person who is detained on national security grounds under immigration-related powers should not benefit from a general right to be released on bail. This does not mean that bail could not be granted in cases where the court was satisfied that adequate safeguards were in place, however unlikely that might be.

Amendment No. 54 will allow a court to vary the conditions on which bail was granted, at the request of either party. For example, bail may have been granted subject to a condition that the person live at a certain address. If the person moves from that address he or she will have broken a condition of bail and will be liable to arrest. This amendment will allow that person

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to seek the court's authority before changing address, which will mean that he will not be liable to arrest when he moves. I am sure noble Lords will agree with me that the introduction of this amendment will be beneficial to those who have been granted bail.

Amendment No. 55 is necessary simply to correct a printing error in the Immigration and Asylum Bill published after we considered the Bill in Committee. Subsection (7) of Clause 44 relates to the arrest of those who have been granted bail by the Special Immigration Appeals Commission. The power to grant bail is set out in Clause 40, not Clause 41.

The purpose of Amendments Nos. 57 and 58 is to provide a power to bring applications for bail made under existing immigration legislation into line with this part of the Bill. The existing Clause 47, which allows for the transfer of jurisdiction over pre-appeal bail applications to magistrates, has effectively been subsumed into the new clause. The new power will be exercisable by the Secretary of State but any rules made will require the approval of the Lord Chancellor.

The new power is intended to be exercised so as to ensure that the practice and procedures for bail applications and routine bail hearings are, as far as possible, the same. This will greatly simplify matters for all those who are involved in deciding bail related issues.I should like to make it clear at this point that we are still considering whether further amendments to this rule-making power will be required for Scotland. This power will allow the statutory presumption in favour of bail to be extended to bail applications. It would clearly be nonsensical for detainees to benefit from the presumption at routine hearings but not upon applications for bail.

By means of Amendment No. 272, any regulations made under the new clause will be subject to affirmative resolution procedure. We intend that applications for bail will be heard in the same locations as routine bail hearings. The choice of any particular location will, of course, be subject to the approval of the Lord Chancellor, as is the case in relation to routine bail hearings under Clause 39. We also wish to see, when the technology becomes available, the use of TV links for the hearing of these cases, as is the case in relation to routine hearings under Clause 46.

The new power will also be used to extend the power to require securities in the bail application context. For the first time, chief immigration officers and above will have the right to request a security before releasing somebody on bail. This will be used only to the extent necessary to prevent absconding, as is the case in the routine bail context under Clause 41. It is hoped that the ability to take a security will lead to the release of some of those who currently have to remain in detention because of doubts that they will abscond.

The Immigration Service will put in place satisfactory arrangements for the receipt, retention and return of securities. Those arrangements will be subject to scrutiny by the National Audit Office. I beg to move.

Baroness Williams of Crosby: My Lords, this group of amendments covers a fairly wide range and perhaps

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I may raise one or two questions on the earlier amendments. I am sure noble Lords on the Opposition Front Bench will want to raise other questions and it is perhaps appropriate to consider them together, as the noble and learned Lord, Lord Falconer, did, for reasons of time.

We welcome the commitment to two bail hearings--one within the first week of the first hearing, the second within roughly a month later. It is excellent that the Government are committed to routine bail hearings, with the broad presumption that bail should be extended unless there are strong reasons why not.

My questions relate to whether the second bail hearing will proceed even if the first were waived by the person concerned in writing. The individual might have arrived in difficult circumstances and be traumatised--and he or she might not have the connections and the legal advice required to understand the importance of attending a bail hearing. We want to ensure that the second routine bail hearing would not thereby be waived. If notice were given in writing that the individual did not want to take advantage of the first hearing, would it be assumed that he or she did not want the second hearing either--or would that require a fresh procedure? The argument is that the individual might not know how to go about getting legal representation or even understand fully the purpose of a bail hearing.

My question on Amendment No. 47 concerns any individual who has strong reasons for acquiring medical or other reports. The noble Lord, Lord Falconer, and his colleagues will be aware that there has been consistent concern in the House for victims of torture, who are obviously one of the groups for whom medical reports would be appropriate. The second part of Amendment No. 47 refers to the possibility that regulations might provide a requirement for there to be a second reference not to apply in prescribed circumstances.

We want to ascertain that where someone had called for a medical report or where one was thought appropriate to consideration of a case, the regulations do not make provision for there to be no second hearing--because the second hearing would be the one at which the medical evidence would probably be considered. We seek clarification that in every case, a second routine bail hearing would almost certainly be held unless an indication had been given by the respondent that they were not, for some reason or another, seeking one.

Viscount Bridgeman: My Lords, we shall be interested to hear the Minister's replies to the questions of the noble Baroness, Lady Williams, in relation to Amendments Nos. 46 and 47. We support the Government in the cases that they have enumerated, where bail need not be granted. In particular, we support Amendment No. 51, in citing the circumstance of national security cases. For the same reason, we do not support Amendment No. 49.

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Amendments Nos. 54A, 54B and 55A in the names of my noble friend Lord Cope and my noble and learned friend Lord Mackay of Drumadoon strengthen the hand of the immigration officer by substituting the words,

    “there is reasonable suspicion that the arrested person will",

for the words

    “or is likely to break".

On Amendment No. 58, we support New Clause 47 but ask the noble and learned Lord why in Committee in another place authority was specifically given to the Lord Chancellor. Under the new amendment, authority appears to be restored to the Secretary of State with the approval of the Lord Chancellor. Could not that have the bizarre effect that the Secretary of State could find himself drafting rules for magistrates?

11.30 p.m.

Lord Falconer of Thoroton: My Lords, perhaps I may begin by dealing with the specific questions that have been raised. The noble Baroness's first question was, I believe, seeking confirmation as regards the situation where the waiver of a right to bail was subsequently withdrawn by the applicant. She wanted to know whether that applicant would get the two hearings or simply one. I can tell the noble Baroness that he would get the two hearings unless his waiver occurred between the first and the second. In that case, he would already have had the first and would only be entitled to the second. Whatever the effect of the waiver, he would get the full benefit of Clause 38 one way or the other if it is withdrawn; namely, two hearings. I hope that that is clear.

I did not quite follow the second question posed by the noble Baroness. I believe she was concerned about a case involving torture where medical reports would be required which could well--and I accept this--be relevant to the question of bail. I think she would like me to confirm that, in all circumstances, medical reports will be available for the second hearing. However, I was not quite clear about the question. I give way.

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