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Baroness Williams of Crosby: My Lords, I apologise to the noble and learned Lord. However, it is quite late at night. I am concerned about the second subsection of Amendment No. 47, which says that,

In view of the fact that the first part of the amendment refers specifically to medical reports, I want to make absolutely certain that that would not be the case for a second reference if the relevant factor was seeking “medical or other reports". There might be other factors which we would accept, but we assume that there would be a second hearing if a medical or other report was sought in order to consider the case. It is the second part of Amendment No. 47 which worries us.

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It deals with what regulations might be able to provide for; namely, the waiving of a second reference. We want to ensure that that will not apply in such cases.

Lord Falconer of Thoroton: My Lords, I understand the point and I am sorry that I have been so slow to grasp it. Under Amendment No. 47, regulations will provide that an adjournment should only be made in order to obtain medical reports in cases where there are arguments about torture or ill health. Where there is a delay in obtaining the report and the time for the second reference has passed, there will be no requirement to make the reference. As it is intended that adjournments will never last more than 21 days, this should never be the case. Therefore, it is to be hoped that you would always be able to adjourn and adjourn in order to allow time for getting the report dealing with the torture issue.

I turn now to the other point made by the noble Viscount, Lord Bridgeman. He is right to say that the Lord Chancellor's approval was added in Committee. The reason for that is the fact that the Secretary of State for Home Affairs is involved in immigration control, while the Lord Chancellor is involved in matters relating to the conduct of judicial or quasi-judicial proceedings. Therefore, it is appropriate that they should do it all together.

The noble Viscount asked one further question, but, as it is late at night, I have forgotten it.

Viscount Bridgeman: My Lords, does it not follow that the Secretary of State had a hand in drafting magistrates' rules?

Lord Falconer of Thoroton: My Lords, they would only come with the approval of the Lord Chancellor, so the noble Viscount may, technically, be right. However, the Lord Chancellor is there to keep everyone on the right track.

Lord Lucas: My Lords, before the noble and learned Lord concludes, can he confirm that I am right in thinking that he did not actually address Amendment No. 47 in his initial remarks? After what he said in reply to the noble Baroness, Lady Williams, I still remain completely in the dark as to the purpose of the second half of the amendment and under what circumstances the noble and learned Lord believes it should be used.

Lord Falconer of Thoroton: My Lords, the noble Lord is absolutely right. I did not address the second half of Amendment No. 47; indeed, I did not address any of that amendment in my remarks. It appears to be quite an important regulation. It aims at the circumstances in which it is perfectly obvious that no second reference is required. It is certainly not intended to deal with the situation about which the noble Baroness, Lady Williams, was concerned; namely, where the report was not ready. In such a case there would plainly need to be an adjournment and there would have to be a second reference.

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However, I envisage that there will be circumstances where it is utterly obvious that a second reference would be a complete waste of time. In those circumstances--they would be quite limited--the regulations could make provision for that to be the case. That is the basis of the of the amendment.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 47:

Page 28, line 29, at end insert--
(“( ) The Secretary of State may by regulations make provision modifying the application of this section in relation to cases where the proceedings on a reference under this section are adjourned to enable medical or other reports to be obtained or for any other reason.
( ) The regulations may, in particular, provide for the requirement for there to be a second reference not to apply in prescribed circumstances.").

On Question, amendment agreed to.

Clause 40 [General right to be released on bail]:

Lord Falconer of Thoroton moved Amendment No. 48:

Page 29, line 6, leave out (“or (3)") and insert (“, (3) or (3A)").

On Question, amendment agreed to.

The Earl of Sandwich moved Amendment No. 49:

Page 29, leave out lines 24 to 38.

The noble Earl said: My Lords, this amendment deals with exceptions to the presumption of bail and whether they should extend to under 18s, those with mental disorder and those still awaiting final decision. We welcome the general right to be released on bail in the main sections of Clause 40, which is an important clause of the Bill. I think it was euphoria and the approaching dinner hour which made it difficult for the Minister to respond on the previous occasion to the noble Lord, Lord Dholakia, who made a number of clear points during Committee, some of which will be reiterated. General enthusiasm for the new clause was tempered by the knowledge that there are major exceptions in paragraphs (b), (c) and (d) which even come close to undermining the whole basis of the right granted. I submit that that situation remains today.

I refer to subsection (3)(b) on mental disorder. It was argued that this is much better dealt with under the Mental Health Act 1983, which defines circumstances under which someone can be detained, for example in a hospital. The noble and learned Lord, Lord Williams, said that he would look at this. Perhaps the Minister will be equally positive today. Subsection (3)(c) on under 18s could be covered under Section 47 of the Children Act which places a duty on local authorities to make inquiries and provide care where they have reasonable cause to suspect harm. The Government may argue that this provision refers only to late night or overnight accommodation, as they have before, but the power can theoretically last seven days. This seems quite out of proportion and is based, I believe, on inadequate reasoning as it implies that the present legislation under the Children Act is likely to fail. Subsection (3)(d) refers

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to cases still being investigated. This has been far too widely drafted and would catch an enormous number of people who would be detained unnecessarily.

The new government amendment shows that the Government are trying to help but they seem determined to exclude anyone whose case is still being considered. This again raises the question of where the Government would hold so many people caught by this provision, and in what conditions. I recently visited Haslar and I know what overcrowding there is there. I hope that the Government will think again about this matter. I beg to move.

The Deputy Speaker (Lord Lyell): My Lords, I must advise the House that if Amendment No. 49 is agreed to I shall not be able to call Amendment No. 50.

Lord Phillips of Sudbury: My Lords, we on these Benches strongly support what has been stated by the noble Earl, Lord Sandwich, in moving this amendment. I wish only to endorse the desirability of trying to simplify legislation as far as possible. We have here a phenomenally complicated Bill. I would have hoped that the Government would have--at least as regards this part of it--latched onto existing legislation which we suggest works rather better than these new provisions. I refer in particular to the 1983 Mental Health Act. What has happened here is that part of the 1971 Act has been put into subsection (3) of Clause 40. It seems odd to be going backwards in time, as it were, given that the considerations which led to the wording and provisions in the 1983 Act are, of course, much more up to date and, we would say, more flexible and better suited to the purposes the Government intend here.

Merely on the grounds of legislative proliferation we would urge this amendment. The Children Act, too, is a more recent measure and contains flexibility and emergency procedures. We do not see any drawback to the Government agreeing with the amendment. No doubt we shall hear from them.

The Lord Bishop of Lichfield: My Lords, perhaps I may express a similar concern in a slightly different way. I wish to make clear that my particular concern is the effect of subsection 3(c), which makes it possible for children and young people under the age of 18 to be excluded from the right to bail in one startling circumstance; that is, where the requisite emergency accommodation under Section 20 of the Children Act has not been provided for the child or young person. Am I alone in thinking that that is astonishing?

My understanding of fairness is that if any penalty is to be imposed it is to be imposed on the person or organisation at fault. Here we have a situation in which the system fails to provide what it is required to provide, and the child or young person whose needs generate that requirement is refused bail. Surely that cannot be right. It must be possible to find somewhere for a child or young person to stay. I am not aware that if a social services department is having difficulty in finding emergency accommodation for a resident child or young person in distress it would even consider

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trying to have that child or young person locked up as an acceptable alternative. Here we are putting that option into law.

The Government made clear during early debates on the Bill that they do not wish children and young people to be detained unless the circumstances are exceptional; indeed, that their officials do not knowingly detain under age asylum seekers. I hope that the Government will recognise that subsection (3)(c) is incompatible with their intent and aspiration. I hope that they will consider removing it from the Bill.

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