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Lord Dholakia: Before the Minister sits down, perhaps I may ask him some questions relating to Amendment No. 167 in the name of the noble Earl, Lord Sandwich, concerning detention centre rules. The Minister was good enough to tell us what the rules were all about and how they were being exercised. But Bail for Immigration Detainees, which has considerable experience in this matter, has drawn my attention to the fact that, although Rule 9 requires the Immigration Service to give reasons for detention on a monthly basis, in its experience detainees are rarely given such reasons in the monthly report which they receive from the service. That is a matter of very serious concern.
The issue has already been taken up with the Home Office, but I have been given to understand that the Immigration Service has not yet considered it appropriate to discipline immigration officers who fail, in their monthly reports, to give reasons for detention.
That is a serious matter which has a number of consequences. One is that it is very difficult for a detainee to prepare a bail application if he does not know the reasons for his detention. When previously unknown reasons for detention are advanced by the Immigration Service at a bail hearing, effectively that delays the decision and causes the whole procedure to be adjourned. On the basis of contributions made in the other place, I understand that that may be one reason for discussing the removal of the whole bail
provision. It undermines Rule 9, and I should be very grateful if the Minister would give the matter serious consideration. The factors that I have set out breach the rule. I do not consider that to be right or proper, and I believe that appropriate action should be taken.
Lord Filkin: I thank the noble Lord, Lord Dholakia, for his further question. I also thank him for the information that he offered on Rule 9 and for setting out, following advice from specialist immigration organisations, his belief that the rule is not adequately complied with. It is a serious issue, and perhaps the noble Lord would supply me with the best evidence that he has. Over the summer I shall undertake to look at that evidence and seek to make other inquiries. I shall also aim to have a further discussion with him before Report stage.
Lord Avebury: I am most grateful to Members of the Committee who have taken part in this debate on a series of amendments. I hope that the Minister will have noticed that other noble Lords whose amendments were not grouped with this set have voluntarily grouped their amendments, thus saving the Committee's time and speeding up the process of discussion. The fact that they did so was a useful exercise because these amendments, including that in the name of the noble Lord, Lord Hylton, and those in the name of the noble Lord, Lord Dholakia, were directly relevant to the three amendments which were grouped initially.
First, the Minister said that the time limit would require predictability, which is not in the possession of Ministers or immigration officers. He also said that, although there is no express requirement to limit detention to a reasonable period, domestic and European legislation demand that detention should be imposed only for a period which is reasonably necessary.
I could accept that if the outcome was that people suffered detention only for periods that were reasonably necessary. Bail for Immigration Detainees has just given me four examples of cases where people were released from detention after periods of six months, nine months, four months and eight months. I do not think that those periods were reasonable, and so the outcomes have not been in accordance with the assurances given by the Minister. The matter needs to be considered further.
With regard to the written rules, the Minister gave a useful assurance to my noble friend that he would consider the examples supplied by the agencies. While he is doing that, perhaps he will look at the question of translation in the light of the fact that determinations from the asylum support adjudicators are all translated before being served because of the importance of the decision and the reasons given therein. I do not understand why the same should not apply to the decisions about the liberty of the individual which to us are no less important. If it can be done in one case, it should be done in another. I hope that the Minister, in looking at the information to be supplied to him by my noble friend, will also take that matter into account.
The question of the JCHR recommendation is a complicated matter. I do not profess to have fully taken on board the reasons given by the Minister in his reply. It is perhaps best if I leave that to be considered by the JCHR and perhaps it will offer further advice to the Minister. There was a dialogue between the JCHR and the Minister and it is surprising, if he put the arguments forward, that they did not prevail. It held to its view in spite of the fact that, as the Minister said, the committee is composed of people who are extremely well qualified in the law and particularly in human rights law.
Finally, on the question of torture, will the Minister think about the systems that are in place to ensure that information is passed to the appropriate officials? The detention centre rules provide only that a report should be made from the doctor, through the centre manager, to the Secretary of State; they are silent on what the Secretary of State should do with that information. A lacuna occurs in the rules which needs to be examined. If the Secretary of State is not under any obligation to take cognisance of the information submitted to him, people who have suffered torture or rape may be detained for a long time.
An example sent to me by BID concerned a female asylum seeker who had been severely traumatised by her experiences in her country of origin. She remained in detention awaiting appeal, during which time her mental health continued to deteriorate. She was held for over four months. It would be interesting to know how the system went wrong. Presumably when the information comes up from the doctor to the Secretary of State, some action is taken which feeds back to the detention decision-maker, and the person with growing mental health problems who is being detained will be promptly released. The fact that that does not happen is a matter of serious concern to us.
I shall leave those matters for the Minister to reflect on throughout the Summer Recess, as shall we. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.30 p.m.
Lord Avebury moved Amendment No. 164:
- Page 28, line 24, leave out "that paragraph" and insert "any of those paragraphs"
A person may be detained under the authority of the Secretary of State pending a decision by the Secretary of State whether to give directions under one of three paragraphs of Schedule 2 to the 1971 Act. Once the Secretary of State has given directions for a person's removal, he has the power to detain that person pending his removal. I understand the purpose of the clause, which is to enable the official who conducts the
examination of the asylum seeker, to make the decision to detain on behalf of the Secretary of State. We have no quarrel with that.As to the wording, in the Immigration and Asylum Act 1999 the words "that paragraph" always refer to a single paragraph. In Sections 116, 117 and 120 that phrase refers to paragraph 2 of Schedule 8 to the Act and in paragraphs 60 and 126 of Schedule 14 it refers to only a single paragraph and not to two or more paragraphs. On the other hand, in Section 140 of the 1999 Act the words "any of paragraphs", followed by some numbers, refers to several different paragraphs.
The precedents refer to one paragraph and I believe that it would be less confusing if this amendment were to be accepted. I hope that the Minister will agree. I beg to move.
Lord Bassam of Brighton: The noble Lord invites me to move the government amendments in this group, as I shall. As a matter of courtesy I shall deal with the amendment of the noble Lord, Lord Avebury, first. We are extremely grateful to the noble Lord for his suggested amendment, but we believe that it is unnecessary. I can, however, see what prompted the noble Lord to table it.
However much it may jar on the ear or the eye, the use of the singular in subsections (1)(b) and (2)(d) is, according to our best advice—no doubt parliamentary draftsmen—correct. The true position under subsection (1)(a) is that it allows the Secretary of State to authorise detention pending a decision whether or not to give removal directions under one or other of those paragraphs. But the eventual directions, if and when they are given, will be under only one of the three. It would be pointless to set removal directions under more than one, even if that were possible.
Thus, subsection (1)(a) allows a person to be detained on the authority of the Secretary of State pending a decision by the Secretary of State. Similarly, subsection (1)(a) allows a person to be detained on the authority of the Secretary of State pending a decision by the Secretary of State, and so on. Finally, subsection (1)(a) permits detention pending a decision under paragraph 14 and subsection (1)(b) allows the person to be detained where directions have been given under that paragraph.
In other words, subsection (1) contains a single new power which allows the Secretary of State to authorise detention, first, pending a decision whether or not to set removal directions under one of three possible paragraphs, and then when directions have been given under the applicable paragraph. We believe that in terms of drafting, the amendment, although intended to be helpful, is not necessary.
Amendments Nos. 165 and 166 are minor and technical amendments to the Mental Health Act 1983 and the Mental Health (Scotland) Act 1984 and are consequential upon the power of detention contained in Clause 52. They are necessary to ensure that those detained under the power in Clause 52 are on the same footing as persons detained under the detention powers in the Immigration Act 1971.
At present the 1983 and 1984 Mental Health Acts refer only to persons detained under the 1971 Act. The amendments to the provisions in those Acts relating to the transfer of detained persons requiring mental treatment will extend their scope to include persons detained under Clause 52. There are no substantive changes to the 1983 and 1984 Acts. Therefore, they are benign, helpful, minor and technical.
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