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Lord Lofthouse of Pontefract: My Lords, I thank my noble and learned friend for repeating the Statement made in another place. Like most other noble Lords, I have had no time to digest the White Paper. However, I noted that it says:


Can my noble and learned friend reassure your Lordships that, within the suggested new arrangements, local people rather than civil servants based in the regions will continue to be able actively to participate in, and be responsible for, the management of the criminal courts?

Further, does my noble and learned friend agree that to lose this stake in the system in favour of notional consultation would be a retrograde step and further inhibit the promotion of confidence in the rule of law, which is itself one of the Government's overarching objectives for the criminal justice system?

Lord Falconer of Thoroton: My Lords, again, I underline what I said to the noble Lord, Lord Kingsland. Locally delivered justice is very important. Paragraph 9.20 of the White Paper says:


    "In an integrated system, local managers will have much greater freedom to balance workloads across the civil, criminal and family jurisdictions, making it easier to sustain court services in local areas. This will support our aim to provide the widest possible network of viable local venues".

My noble friend also referred to the importance of local consultation. We thoroughly endorse that.

Lord Renton: My Lords, as major legislation will need to be passed as soon as possible in order to implement the Government's proposals, can the noble and learned Lord say whether there is any hope of introducing it within the present Session or shall we have to deal with it early in the forthcoming Session? Perhaps I may make the suggestion that, if we are to get this Bill through in its best form and as soon as possible after it is introduced, it should be introduced, first, in your Lordships' House, where there is far more experience—judicial and otherwise—needed to deal with this legislation than can be found in another place.

Lord Falconer of Thoroton: My Lords, there is no prospect whatever of a Bill relating to the White Paper being introduced this Session. The noble Lord, with his experience, has identified that a fairly significant Bill will be required to implement the measures in the White Paper. We hope to be able to introduce one as quickly as possible. The noble Lord suggested that it be introduced in this House rather than in another place. For the same reason I gave the noble Lord, Lord Kingsland, I would not dream of giving such an indication. That is a matter for the business managers.

Baroness Hanham: My Lords, as I am one of the few magistrates in your Lordships' House I can tell noble Lords that broadly magistrates will welcome the increase in sentencing powers. However, I heard with some anxiety the word "reorganisation". I am

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conscious that at the present time the magistrates' court system is in the middle of quite a considerable upheaval. Is the intention to build on what has already been achieved through the changes or is the intention to start all over again?

When reorganisations are carried out the impact upon the staff and the people who work within the system tend to be forgotten. As reorganisations take place, they cause difficulties and basic inconvenience and they undermine the system. Will the magistrates' court system continue under the proposals currently being adopted, or will the cards be thrown up in the air again?

Lord Falconer of Thoroton: My Lords, we do not envisage throwing the cards up in the air. Unifying the court system into one organisation will be a significant change, but it will be carried out in a manner that builds upon the strengths of what is already in place. I thoroughly endorse the point made by the noble Baroness that too much change can have a detrimental effect on an organisation. Change must be carried out in a highly consultative and careful way to ensure that the system continues to run while the changes take place.

Lord Ackner: My Lords, like many noble Lords I have had no time to study the White Paper. Therefore, the few words that I offer are subject to further and better particulars later. From what I have heard, I would welcome a Bill. I am a little concerned by the ringing cries that the interests of the victims must be put first. I am not sure that I understand what is meant by "victims". I understand the word "complainant", but a complainant has yet to establish that he has a justifiable case for the prosecution to support. To me, a victim is one who has, without doubt, been wrongly, unlawfully, illegally treated. Surely, that can only be established after there has been either an admission of guilt by the defendant or a finding that the complainant is justified in coming forth with his complaint.

A large area of law establishes that previous convictions are, in limited circumstances, already admissible. I should like to hear in detail what is inadequate about the existing provisions. If judges are to be relied upon to add to those exceptions to the rule that previous convictions are not admissible, they will find themselves reluctant to do so. When I was a judge I followed the usual tradition of cautioning counsel before he overstepped the mark, for example, by over-attacking the conduct of the prosecution. One did that because one did not want previous convictions to determine a case.

I believe that the reluctance to allow previous convictions in evidence will continue. Unless the judiciary is to be bullied into doing something that it does not believe is just—I do not see that succeeding—I would not place too much store on widening the exceptions that exist at the moment.

There is no doubt that a relevant conviction can be highly prejudicial. As a generalisation, in a case of rape it would be wrong to allow previous convictions of

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rape unless they were admissible under the exceptions that already exist. One of the reasons for the high acquittal rate in rape cases is that as a member of a jury one has to evaluate whether one believes X or Y, while bearing in mind the obligation to be satisfied beyond reasonable doubt. In that situation one can understand reasonable doubt arising in a large proportion of cases. That is a good example of a case in which reasonable doubt would immediately vanish if the jury learned that the accused had been previously convicted of such an offence. Those are "off the seat of one's pants" observations. I look forward to the further debate.

Lord Falconer of Thoroton: My Lords, I shall deal shortly with those questions. I believe that many people would take issue with the definition of "victim" stated by the noble and learned Lord. For 77 per cent of crimes committed in this country no criminal is detected. I do not believe that that makes those who suffer crimes any the less victims of crime.

On whether judges may be reluctant to extend the circumstances in which previous convictions are admissible, we propose that such circumstances should be extended to where they are relevant and be subject to the judicial discretion to which I referred. Sir Robin Auld, in his report, in reference to the work of Professor John Spencer, put forward a proposal that involved a very expanded increase in the circumstances that we do not adopt; so too did the Law Commission, presided over by Sir Robert Carnworth. So other judges who have considered this issue are willing to entertain increased circumstances in which previous convictions are admissible. The current circumstances are difficult to follow and are not necessarily consistent. In many circumstances they are not fair to the prosecution.

Nationality, Immigration and Asylum Bill

4.38 p.m.

House again in Committee on Clause 56.

[Amendments Nos. 170B and 170C not moved.]

Clause 56 agreed to.

[Amendments Nos. 171 and 172 not moved.]

Clause 57 [Bail]:

Baroness Anelay of St Johns moved Amendment No. 173:


    Page 32, line 13, leave out subsection (6).

The noble Baroness said: This is an important matter so I hope Members of the Committee will understand if I take a little longer than usual in introducing it.

Amendment No. 173 would delete subsection (6) of Clause 57 in which the Government propose to repeal the provisions on routine bail hearings enacted in Part III of the Immigration and Asylum Act 1999. Many

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outside non- governmental organisations are rightly concerned about this proposal and it is right that today the Government should justify their intention.

In another place the then Home Secretary, Mr Straw, said in a debate on 22nd February 1999 at col. 39 of the Official Report:


    "Part III fulfils the commitment in the White Paper to introduce a more extensive judicial element in the detention process. That will be achieved by introducing routine bail hearings for those detained under immigration legislation.".

In this House the noble and learned Lord, Lord Williams of Mostyn, when moving the Second Reading of the same Bill on 29th June 1999, at col. 178, said,


    "Part III introduces important new safeguards for immigration detainees. It introduces a more extensive judicial element into the detention process by means of a system of routine bail hearings, but the Government have decided that we should go further. The Government intend to bring forward amendments during the proceedings in this House to provide for a statutory presumption of bail, with exceptions to ensure effective immigration control and enforcement. Part VIII of the Bill provides a proper statutory framework for all aspects of the management and administration of detention centres and for the escort of detainees. Taken together, the provisions regarding bail and detention centres will provide significant additional safeguards for immigration detainees".

I am sure Members of the Committee will recall that the noble and learned Lord moved the amendment of which he spoke at Second Reading on 19th July in Committee when he said,


    "I hope that the amendment will meet with the universal acclamation of the Committee".—[Official Report, 19/7/99; col. 725.]

That amendment is now Section 46 of the 1999 Act and it is those very provisions in Part III of the Act, so eloquently spoken to by the noble and learned Lord, Lord Williams, three years ago, which today the Government propose to repeal under Clause 57(6) of this Bill. We acclaimed it; the Government now dispose of it.

There was an extensive debate on this matter in Standing Committee in another place. But the justification given at that time by Miss Angela Eagle was unconvincing. Members of the Committee will note that the provisions have never been brought into force. The Minister said that they were not brought into force because,


    "we have been trying since the 1999 Act to work out the frequency and logistical implications of automatic bail hearings for each detainee. We concluded that it would be a logistical nightmare that would divert scarce resources from processing asylum applications . . . Implementing the Part III bail provisions would significantly increase the burden on the Immigration Appellate Authority".—[Official Report, Commons, Standing Committee E, 14/5/02; col.256.]

I cannot believe that the provisions in the 1999 Act which were described as important and significant by the noble and learned Lord, now the Leader of the House, and the implications of which were doubtless considered in detail by the Home Office when the White Paper was drawn up, when the 1999 Bill was drafted and when the amendments were proposed, are now to be dismissed as a logistical nightmare. I cannot believe that the noble and learned Lord, Lord Williams, would have put his name to such a measure

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and spoken in favour of it if he were not entirely certain that it was eminently workable and its implications had been fully thought through by the time the Act was passed by this House.

One final but important point on Amendment No. 173 is this. In another place my honourable friend Mr Malins moved an amendment which would have brought the provisions of Part III of the 1999 Act into effect. The Minister argued in response that to do so would be administratively unworkable and would cause chaos and catastrophe in the system. Amendment No. 173 meets the Government's point. It would not bring the provisions into effect but it would stop their repeal. The effect of that would be to allow the Government to bring them into force at a time when the administrative concerns which the Minister cited in another place had been allayed.

If the Minister were to resist the amendment, surely he would have to cast aside the mask of administrative unworkability that was taken up in another place and reveal the real policy reasons behind the Government's change of position. I invite him today to give us better justification on this matter than in another place. I beg to move.

4.45 p.m.

Lord Avebury: Before I spoke to the last amendment I asked the noble Lord on the Government Front Bench to comment on the reports which have been made of remarks by the Home Secretary which appear to be an interference with the arrangement of business in your Lordships' House. I sent the noble Lord, Lord Filkin, a copy of the report by AP which quoted the Secretary of State as saying that he had already made provision for his new Bill to be speeded up, shortcutting the usual procedures so that it could be in place by mid-October. Later he went on to say that,


    "if Britain could send 'early signals' to France about the Bill's progress and possible completion in July, London and Paris may be in a position at the September meeting in Frethun to set an early deadline for closure [of the Sangatte centre near Calais]".

The noble Lord owes the House more of an explanation of what happened than simply to tell your Lordships, as he did, that those words were not in the press statement issued by the Home Office. We know that because the press statement is on the Home Office website and can be read by everybody. This is a report by the European editor of a respectable news agency purporting to quote the Home Secretary in direct terms saying that he had already taken steps to intervene in the proceedings of your Lordships' House and to adopt short-cutting procedures which would enable Parliament to complete the passage of the Bill so as to speed up the closure of the Sangatte centre.

I am sure we are all in favour of closing the Sangatte terminal, but not at the expense of proper discussion on this Bill. I hope that the noble Lord, Lord Filkin, will be able to give further assurance either that the Home Secretary did not speak the words attributed to him by the European editor of AP, or that he made a mistake in doing so and that there is no intention by

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the Government of intervening in the usual channels to irregularly speed up the procedures that we normally adopt in this Chamber.

Turning to Amendment No. 173, which we fully support, we see this as being about the Government reneging on their undertaking to bring in automatic bail hearings for people detained under the Immigration Act which was given at the time of the 1999 Bill. They now say that Part III was not a cynical point to keep Members on these Benches and in another place happy, but it certainly had that effect at the time.

It means that we have to look with scepticism on other apparently liberal and compassionate provisions which come into effect on a date to be determined by the Secretary of State, of which there may be quite a number in this Bill. Only 18 of the 143 clauses before us come into effect on the passing of the Bill. How are we to know, for instance, that in three years' time the Government will not do another U-turn and say that the clauses we are proposing to approve now will no longer be necessary or desirable in the light of changed circumstances?

The noble Baroness, Lady Anelay, made a strong case for saying that if we leave Part III as it is, it can be brought into effect whenever the Government choose and the administrative concerns which now prevent them from doing so may have changed rapidly in a couple of years' time. We certainly hope that in three years the pilot accommodation centres which we have already discussed will be up and running and, if they are the success we hope, there will be little need to detain anybody at the beginning of the asylum process.

The White Paper, Fairer, Faster and Firmer, gave three sets of circumstances where detention would normally be justified. The noble Lord, Lord Bassam, recapitulated on them on the last amendment. They were: where there is a reasonable belief that the individual will fail to keep to the terms of temporary admission or temporary release; initially to clarify a person's identity on the basis of their claim; or, thirdly, where removal is imminent. The third category we have no argument about. We assume that, since the Government's intention is to speed up the removal of people who have exhausted their legal remedies, most of those people will be removed within seven days, or certainly within the 28 days at which the second automatic bail hearing would come into play.

It would be useful if the Minister could give us some idea of the mean time for which people are presently held prior to removal, and the standard deviation from the mean, or what they hope to achieve when the removal centres are fully in operation. That is the key. If no one was held longer than 28 days, the additional 2,000 bail hearings—a figure which I think initially the Minister in another place gave to the House—would no longer be operative. It would be a much smaller figure, which we would need to assess in the light of any figures that the Minister can give us about the length of time people will be detained.

In the vast majority of cases, at the beginning of the process the person's identity and the basis of his claim would be verified at the induction centres. If there are

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a few where uncertainty still exists, further inquiries can be made after an applicant reaches an accommodation centre. People will have a strong incentive to remain in an accommodation centre. If they leave, not only will they jeopardise the success of their claim, they will lose support and have to fend for themselves.

Therefore, the number of people who need to be detained at the front end of the asylum process could be small. That would bring about the administrative changes which the noble Baroness, Lady Anelay, has spoken of and which would negate the fears expressed by the Minister that we would overwhelm the process with this vast number of applications.

In the meanwhile, there is something to be said for the suggestion made by the honourable Member for Walthamstow in another place, who is also chair of the all-party group on refugees, that at least automatic hearings should be retained and brought into force for asylum seekers whose legal rights have not yet been exhausted. It would be useful to know whether the Government have any views on that because we could think about it between now and the Report stage.

When the honourable Member for Walthamstow made the proposal in another place the Minister ignored his remarks. She rested her case on the statistics that she had given—that bringing Part 3 into force would mean this extra 2,000 caseload a month on top of the 1,000 cases which are already being heard. Those figures appear to indicate that two-thirds of the people detained have no opportunity for a bail hearing. In many cases that is because they have not had access to an experienced immigration law practitioner or because it is impossible to find sureties.

I welcome that detainees are now being notified of their right to apply for bail and are given the telephone numbers of the Refugee Legal Centre and the Immigration Advisory Service on the form which sets out the reasons for their detention. But, as we have already heard, those forms are not translated into the languages normally used by asylum seekers; nor do those agencies take on bail hearings for applicants who are not their own clients. People who go through Oakington have a better chance than others because the IAS and the RLC are on the premises, but the IAS only rarely applies for bail because of the huge pressure of its substantive work. I accept that if automatic bail hearings were to be introduced additional resources would need to be made available to those agencies.

What would probably happen under the present arrangements, if we had automatic bail, is that immigration officers would use detention only where it was strictly necessary. If the Minister says that is already how it works, that they only detain someone where it is strictly necessary to do so, I can give examples from BID's recent cases which appear to show that detention is applied in circumstances where there is no reason to believe that the applicant would abscond or would fail to comply with residence or reporting restrictions.

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We have already heard about the examples that BID has sent to your Lordships. I shall just quote one from the set which has emerged since 9th July. That is the case of asylum seeker B who was detained by the Immigration Service despite the fact that he had previously been granted bail and had kept in touch with the authorities by signing on regularly at the police station as instructed. B's legal representatives felt that without at least one surety they could not proceed to a bail application because the chance of success was too low under the terms of the merits test for public funding. So B spent seven-and-a-half months in detention without a bail hearing before one was arranged by BID.

The Immigration Service failed to produce the applicant in court. As a result he spent a further six weeks in detention. At the next hearing B was produced and the application went ahead. It then became clear that an error had been made by the Immigration Service in its case for maintaining detention and it was shown to be effectively without foundation. So B was then granted bail in his own recognisance in the sum of 10 with no sureties required after nine months in detention.

That is what happens when there is no automatic bail hearing. People can languish for months on end in detention without their cases being heard. Therefore, automatic hearings would concentrate the minds of immigration officers, knowing that they would have to respond to challenges before the adjudicators or the magistrates. The fact that clients do much better when they have competent representation proves that the volume of detentions is not a function of the probability that applicants would fail to comply with the conditions, but of the availability of legal assistance and of sureties. Since detention is expensive, it would be in the public interest to make it easier for asylum seekers to apply for bail by expanding the resources of agencies for that purpose and reducing the demands made on sureties.

It would be in the public interest to agree to the amendment because there would be a huge net saving of public expenditure, so I whole-heartedly support the noble Baroness. I hope that the Government will agree to her amendment.


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