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Lord Dholakia: The amendment to which I speak is grouped with Amendments Nos. 163A, 164A and 164B. Amendment No. 164ZB is not numbered on the Marshalled List but is printed under Amendment No. 164A. It is tabled in the name of my noble friend Lord Avebury and myself. At page 28, line 24, the amendment seeks to insert the words:
- "Victims of torture, including rape, whose trauma is likely to be compounded by being detained for an indefinite period in conditions which may be reminiscent of those which they fled, will be exempt".
An interesting point in this clause about the detention by the Secretary of State is that a person may be detained under the authority of the Secretary of State pending. In other words, the Secretary of State has a discretion as to whether a person should be detained. I wish to refer to the evidence which has been given to us about an organisation called Women against Rape. It highlights the devastating effect and impact of being detained in an induction centre and/or a detention centre in particular for women who are already traumatised by their experiences. These often include rape in detention. They experience extreme distress on being incarcerated. In some cases that continues for many months in conditions which remind them of the conditions from which they have fled. Woman suffering from rape trauma syndrome need a very sympathetic environment, independent legal advice, appropriate medical and healthcare, counselling and other support which is not available in such centres. The noble Baroness, Lady Kennedy of The Shaws, pleaded with the Government to be sympathetic to women who suffer because of the situation in which they find themselves. Every immigration and asylum agency can detail such cases and the impact on victims.
We raised this issue during the passage of previous immigration and asylum legislation. We pleaded with government then and we do so again. I do not allege that the Government are heartless; that is the last thing that I should suggest. I am sure that the Government share our concern about such issues. I shall avoid detailing the harrowing examples that have been given to us by various agencies about women who suffer this trauma. This is not simply a question of people being raped in detention; it is also a question of people being
tortured. Ample evidence is available from the report of the medical foundation. It highlights case after case of people who undergo that ordeal.My plea to the Minister is that the Home Secretary should have discretion in this regard. The need for a more compassionate and humanitarian approach will resolve this difficulty. This issue deserves serious consideration. Our decision about the way in which we treat such victims will reflect on our civilised values. I hope that the Minister will not find it inappropriate to agree to the amendment.
9 p.m.
Lord Hylton: I suggest that this is one of the most important groups of amendments.
- "a reasonable and limited period",
I turn to the unnumbered amendment which follows Amendment No. 164A in the Marshalled List. Earlier, the Minister mentioned humanitarian criteria as being likely to govern the selection of those people who go to accommodation centres rather than being dispersed, which was helpful. Can he therefore say that those who can bring themselves to mention that in the past they have suffered torture or rape will, if possible, be directed to an accommodation centre? I am aware that it is not always possible for those people to declare that to an unknown government official at an early stage. When it does not happen and no declaration is immediately made, it can still be made at a later stage. At that later stage, it is crucially important that the person should be seen by an expert independent doctor with relevant experience of such cases; for example, those who work with the Medical Foundation for the Care of Victims of Torture.
Even if the Government criticise the text of the unnumbered amendment which stands in the name of the noble Lord, Lord Dholakia, I hope that they recognise that it contains an important principle.
I turn to Amendment No. 164A, which appears in the name of the noble Earl, Lord Russell. It touches on the essential matter of written reasons. I prefer Amendment No. 167, which was spoken to by my noble friend Lord Sandwich, to which I have added my name. That is fuller, better and clearer. It is needed because the Government refuse to allow automatic bail reviews and because it has been shown that habeas corpus, which is an important part of the history of civil liberties, is an insufficient and inadequate procedure with regard to getting asylum seekers out of detention. I urge that amendment on the Government.
Lord Filkin: I shall speak initially to Amendment No. 163A. That amendment would require the detention of persons detained under the power in
Clause 52 to be for only a "reasonable and limited period". Although it creates an explicit requirement to detain a person under this clause for no more than a reasonable and limited period, the amendment does not after the wording of the existing powers of detention in the 1971 Act. It is not entirely clear, as drafted, what the inclusion of the word "limited" in this amendment is intended to achieve. If it is intended to require the setting of a time limit for a person's detention under this clause at the point at which it is authorised, I fear that that is simply impracticable; nor do we regard it as necessary.Setting such a limit at the outset of detention would require considerable predictive ability, which is unrealistic, or the setting of no more than an arbitrary time limit, which might bear no relation to the particular circumstances of the case concerned as it progressed. In either case, it would be odd for the detention of a person under this clause to be subject to a time limit while that was not the case for detentions authorised under the Immigration Act 1971. Moreover, a time limit on detention would be counter-productive in that it would simply encourage those in detention to prolong and frustrate the process so as to reach a point at which they had to be released.
Although there is no express requirement in legislation to detain persons for no more than a reasonable period necessary in the circumstances of each case, domestic and ECHR jurisprudence is clear and well established on this point.
First, the power to detain may only be exercised for the specific purpose authorised by the statute. Secondly, detention is only permitted for so long as is reasonably necessary in the circumstances for that authorised purpose. Thirdly, the detaining authority must act with reasonable diligence with a view to the purpose being pursued. That is well understood and it does not require a statement to that effect on the face of the Bill. For this reason, we feel that the amendment is unnecessary and invite the noble Lord to withdraw it.
Amendment No. 164A would require written reasons for detention to be given to any person detained under the power in Clause 52 with provision for those reasons to be challenged, albeit by unspecified means. These requirements would not apply to any person detained under the powers of detention in the Immigration Act 1971.
It is right that detained persons should be notified of the reasons for their detention. It is also right for such persons to be kept informed of the reasons for any continuing detention. It is for these reasons that Rule 9(1) of the Detention Centre Rules 2001 requires every detained person to be provided with written reasons for detention at the time of his initial detention and monthly thereafter.
In line with this rule, every detained person is served at the time of their detention with a written notice which sets out the Immigration Act power under which detention has been authorised, the reason or reasons for detention, and the factors taken into account in reaching that decision. This notice must be
explained to the detainee, using an interpreter if necessary. The form itself and instructions to staff on its completion make this clear. The noble Lord's amendment does not therefore put in place something which is not, we believe, happening already. On that basis I hope that the noble Lord will withdraw the amendment.I am conscious that in tabling Amendment No. 164B noble Lords are acting on a suggestion made by the JCHR. I am conscious that the committee includes among its members some very eminent legal minds. It is therefore with some trepidation that I suggest that the amendment is, in the Government's view, both unnecessary and potentially confusing.
Unlike the committee, we do not consider that there is any ambiguity in the wording of subsection (7). If the Secretary of State has reasonable grounds for suspecting that a person is someone in respect of whom he is able to make one of the relevant decisions, that person may be detained under this clause. If the Secretary of State does not have reasonable grounds for suspecting that he may make such a decision, there is nothing in subsection (7) that would allow detention on any lesser grounds, however one might define them. For that reason, we say that it is unnecessary to add the word "only".
The amendment is also, at the very least, potentially confusing and may actually have an effect which I do not think the committee intended. Clause 52 allows the Secretary of State to authorise the detention of certain categories of persons, all of whom may be liable to removal under the powers contained in Schedule 2 to the 1971 Act. In addition, subsection (7) allows this power to be exercised where there are reasonable grounds for suspecting that the individual concerned is such a person. In other words, if it turns out that the person who was detained is not such a person, then, provided always that there were reasonable grounds for suspecting that the person could be detained, the detention was not unlawful.
If Amendment No. 164B were to be accepted, however, the circumstances under subsection (7) would not be in addition to the power to detain the persons described in subsections (1) and (2). Instead, on the face of it, subsection (7) would govern the rest of the clause.
On a plain reading of the subsection, as it would read if amended in the way suggested, the power to detain would be exercisable only where the Secretary of State had reasonable ground to suspect that he could make a decision of the relevant kind. But where he had something more than a reasonable ground—where, for example, he might have almost certainty—then perhaps it may not apply. As I say, I do not think that this is the intention of Amendment No. 164B and I hope that my explanation will persuade noble Lords not to press the matter.
The noble Earl, Lord Sandwich, helpfully suggested the inclusion of Amendment No. 167 at this stage. It is of course right that the detained person should be notified of the reasons for their detention; it is also right for such a person to be kept informed of the
reasons for any continuing detention. As I indicated, that is why Rule 9(1) of the Detention Centre Rules requires the written notification at the time of the detention and monthly thereafter.In line with this rule, every detained person is served at the time with a written notice which sets out the Immigration Act power under which the detention has been authorised and the reason or reasons for doing so. This must be explained to the detainee, using an interpreter if necessary. The detention of individuals is reviewed monthly, assuming it lasts that long. If, following the review, a detainee is to remain in detention, he will be given a written update on the progress of his case, together with the reasons for maintaining detention.
The noble Earl's new subsection therefore does not put in place something which is not required already. It would, however, require rather more than the present position: to be frank, more than is necessary or practicable, namely that the written notice of reasons for detention should be translated into a language understood by the detainee concerned and that it should not be on a pro forma.
So far as the language is concerned, this option has been considered previously and has been rejected as impracticable and unnecessary. The existing notice has to be explained to the detained person and, if necessary, it must be done with the interpreter. This ensures that the detainee understands the reason for detention. In almost all cases the detainee's advocate is likely to be able to read English, and the documentation served in English makes it absolutely clear to the detainee's advocate the power and the reasons for detention. While interpreting is possible, it would be another thing for the notice to be translated and served on the detainee without delay.
There has been some criticism of the detention reasons notice being a pro forma. The clear intention behind Amendment No. 164A is that it should be an individually tailored letter in every case. I do not accept that the pro forma provides any less information on the reasons for detention than would realistically be given in a letter. It is certainly not the case that the current notice provides only generalised reasons for detention. It sets out the specific power of detention used and specifies the particular reasons and factors that apply to the decision to detain in the case concerned. A letter drawn up for each case would do no more and would be likely only to introduce further delay. For those reasons, we do not consider it necessary.
To amplify that, the checklist contains all current policy reasons for detention and the factors to be taken into account when detaining. Therefore, it addresses the individual circumstances of the person being detained. That meets the commitment made by my noble and learned friend Lord Falconer. The form is kept under review, as my noble and learned friend Lord Williams undertook.
The noble Lord, Lord Dholakia, also spoke to the important Amendments Nos. 164ZB and 177ZA. I strongly sympathise with the sentiments that lie
behind the amendments and the serious issues that they address, even though I do not think that they are necessary. We made it clear in our 1998 White Paper, Fairer, Faster and Firmer, that evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release when deciding whether to detain while an individual's asylum claim is being considered. That remains the case.The instructions to staff authorising detention are clear on that. Independent evidence that a person has a history of torture is one of the factors that must be taken into account when deciding whether to detain and would normally render the person concerned unsuitable for detention other than in exceptional circumstances. Such evidence may emerge only after the detention has been authorised. That may be one of the circumstances referred to by the noble Lord, Lord Hylton. If that happens, the evidence will be considered to see whether it is appropriate for the detention to continue.
We reinforced that in the Detention Centre Rules 2001. Rule 35(3) specifically provides for the medical practitioner at the removal centre to report on the case of any detained person who he is concerned may have been the victim of torture. There are systems in place to ensure that such information is passed to those responsible for deciding whether to maintain detention and to those responsible for considering the individual's asylum application.
However, unfortunately, there cannot be a blanket and total exclusion for anyone who claims that they have been tortured. There may be cases in which it would be appropriate to detain somebody who has a history of torture. For example, the person concerned might be a persistent absconder who is being returned to a third country. It might be necessary to detain such a person to effect removal. There will be other cases in which the particular circumstance of the person justifies such an action. There will be yet other cases in which we do not accept that the person concerned has been the victim of torture. Despite that, I repeat my earlier comments about the importance of seeking to interpret these cases with the utmost care and not lightly using the exceptions to which I referred.
The amendment, which would not apply to any person detained under the detention powers in the 1971 Act, would reduce what can be a difficult area to a blanket exemption in a way that is, by definition, overly prescriptive and open to considerable debate and argument as to whether all its conditions have been met in a particular case.
Amendment No. 177ZA contains similar, although not identical, wording. It is out of place in Clause 59. People are not detained on induction programmes and nor, to use the wording of the amendment, could they be seen as "reminiscent" of detention from which a person has fled. A stay near an induction programme will be short-term. The places where people will reside will have no resemblance to detention and there is no reason to make a blanket exemption from the provision in Clause 59 for those who have been tortured. I repeat that I am entirely sympathetic with
the sentiments underlying the amendments, but I hope that what I have explained goes some way to relieving the concerns that have been expressed.I also noted the question of the noble Lord, Lord Hylton, about whether those who have suffered torture and rape should be able to go to accommodation centres rather than being detained. I understand the spirit of what he is saying. However, accommodation centres do not have any detention process, so they would be unlikely to provide the necessary security if there is believed to be a need to detain. I hope that the noble Lord's concern is addressed by testing seriously whether detention is necessary when there is a potential case of torture. I referred earlier to the noble Lord's point about whether the declaration could be made later. The responsible officials should attend to that and give it serious consideration.
Finally, with regard to the point raised by the noble Lord, Lord Hylton, concerning a reasonable and limited period, the implied requirement is already accepted that detention will be for no longer than necessary in the circumstances. Detention cases must also be kept under review with regular internal reviews. As I said previously, detention centre rules require reasons for detention to be given on a monthly basis.
I regret having spoken at such length but, of course, Members of the Committee grouped together a number of amendments and I needed to speak to five or six at the same time.
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