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Lord Filkin: My Lords, in the flurry of excitement about some of the previous procedures, I omitted to say that we would be happy to look at the noble and learned Lord's suggestion, which sounds as if it is very close to getting two hits on two consecutive days.
Lord Mayhew of Twysden: My Lords, I beg leave to withdraw the amendment. I do so with much gratitude to the Minister for his encouraging words.
Amendment, by leave, withdrawn.
[Amendments Nos. 39 and 40 not moved.]
Lord Bassam of Brighton moved Amendment No. 41:
- Page 32, line 2, at end insert—
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 42. In the interests of brevity, all I wish to say about these amendments is that they are minor, technical and consequential. I hope that noble Lords will not press me too much on them. I beg to move.
On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendment No. 42:
On Question, amendment agreed to.
Lord Avebury moved Amendment No. 43:
The noble Lord said: My Lords, I do not move this amendment with the expectation that we shall achieve any advance on what the Minister said in Committee. He told us then that the amendment was unnecessary because the Government always provide written reasons for detention, and monthly reviews of detention are notified in writing. However, as the Minister will be well aware, the practitioners say that the so-called "reasons" given do not amount to proper reasons. They are dissatisfied with the manner in which they are conveyed.
Perhaps I may draw the attention of the House to a survey that was conducted by Bail for Immigration Detainees, which was mentioned in a previous debate. The reasons for detention given in some 90-odd cases that were dealt with in April 2001 and July 2002 were
Earl Russell: My Lords, it has been English law since the 17th century, and some would say since the 14th century—I incline myself towards the latter view—that one cannot arrest and detain a person unless he has been proved guilty of an offence or one wants immediately to charge him with an offence and bring him to a trial at which the charge may be answered. Clearly, that has been English law for a long time. The question is how far that law applies to foreign citizens in this country.
In the early 1990s I used to say that we were the only party prepared to come into office willing to limit our own power. During the passage of the Human Rights Act, my noble friend Lord Lester of Herne Hill pointed out that the Government were also able to claim the credit for that principle. They were prepared to come into office ready to limit their own power. That was an accurate statement and I do them honour for it. But the process is one that necessarily hurts and when we were in office we found that it hurt. Measures such as the Official Secrets Act 1911 are not among the great glories of my party.
However, this Government have to accept that they cannot detain people simply because they believe that it would be more convenient to do so. They must be able to charge people with an offence and to give them written reasons, to which they may make a reply and to which they may make a defence. The incorporation of the European convention applies what used to be described exclusively as the liberties of Englishmen, not to mention Scotsmen, to other people from other
The Earl of Sandwich: My Lords, the noble Earl has spoken with authority, but I confess to a degree of exasperation. During previous stages I expressed disappointment with the repeal of Part 3 and the lack of proper procedures for explaining to detainees the reasons for their detention. The Minister has offered us a pamphlet advertising the right to bail, which is welcome, but it is not a substitute for a proper judicial process.
Lord Filkin: My Lords, we are not, as yet, debating Part 3 bail.
The Earl of Sandwich: My Lords, that is right, but I cannot help but make the point that the two matters are connected although not grouped together. I am concerned with the lack of proper procedures for explaining to detainees the reasons for their detention as I have mentioned before. I feel strongly that the checklist known as form IS91R should and could be improved at least to allow space to record the detainee's individual circumstances. The present form is contrary to UN guidance, as presented in evidence three years ago to the Select Committee, which said:
The improved form, besides fulfilling the UN criteria, could also become the basis for information prepared for bail hearings. I believe that there is new ground for debate on this matter. Therefore, it links directly with the arguments being made for automatic or regular bail hearings. Bail summaries should be available in advance of hearings to enable the detainee to prepare. That will save the time of the court.
A number of points arise from the Minister's recent conversations with the noble Lord, Lord Avebury, as already mentioned. I hope, for example, that we shall hear clearly from the Minister on the critical question of how the effects of torture and other medical information are recorded in the case of individual detainees. It is precisely because of the need for that information to be properly noted that we were arguing for an improved version of the written reasons. Many of us remained wholly unsatisfied with the present situation as the bail for immigration detainees case studies show. We remain of the view that assurances clearly given in 1999 by the noble and learned Lords, Lord Williams of Mostyn and Lord Falconer, have not been honoured. The Home Office still needs to put the matter right. I support the amendment.
Lord Kingsland: My Lords, will the Minister kindly tell the House why he believes that Clause 55 of the Bill conforms to the European Convention on Human Rights? The Government have certified that that is so, but I, for one, would welcome an explanation.
"( ) In the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4))—
(a) at the end of Article 54(2)(d) (detained persons susceptible to transfer for mental treatment: immigration) there shall be added "or under section 55 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State)", and
(b) in the heading of Article 59 (supplemental provision) the reference to the Immigration Act 1971 becomes a reference to the Immigration Acts."
Page 32, line 8, at end insert—
"( ) In section 147 of that Act (detention centres: interpretation) at the end of the definition of "detained persons" there shall be inserted "or under section 55 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State);"."
After Clause 55, insert the following new clause—
"REASONS FOR DETENTION
(1) A person detained by the Secretary of State under section 55 of this Act or by an immigration officer or the Secretary of State under the Immigration Act 1971 shall be provided with full written reasons for his detention in a language which he fully understands.
(2) Such reasons shall be provided within 24 hours of his initial detention and shall give a full justification for the need to detain him at that time.
(3) Further written reasons shall be given at the end of each period of 28 days or more during which he continues to be detained and shall give a full justification for the continuing need to detain him in particular.
(4) The completion of a pro-forma sheet listing general reasons for detention will not be sufficient to meet the requirements of this section."
"Awaiting outcome of appeal against initial refusal",
which showed a figure of 42 per cent. Again, that is not a reason for detention. And:
"Appeal lodged awaiting hearing date",
which amounted to 6.5 per cent. I shall not go through the whole list of the reasons, but I am sure that the Minister can understand why we are anxious about this and why we believe that the assurances so far given are inadequate. That is why we seek to insert into the Bill the words set out in the amendment. We need to be certain not only that the assurances are carried out but also that they are on the face of the Bill and, therefore, irrevocable. In that way, people will be able to draw attention to the wording if they believe that the assurances are not being put into practice. I beg to move.
5.30 p.m.
"Individualised written reasons, as opposed to repetition of generic formulae, for detention should be given to detainees at the time of arrest".
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