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Lord Filkin: My Lords, I am not certain that I caught every word of what the noble Earl, Lord Russell, was saying. I was conferring with the Table about where we were. I heard the noble Earl say that he was speaking to Amendment No. 54A. We are dealing with Amendment No. 44. I should be happy to return to his point when we reach Amendment No. 54A.
Clause 57 gives detainee custody officers acting under escort a limited power of entry to private premises in order to search detained persons prior to escorting them to a place of detention. The persons being taken to a place of detention must be searched before they are transported; most obviously to ensure that they are not carrying weapons or dangerous items. The search is to ensure the safety and security of the escort, the public and the detained person, including other detainees who may be in the escort vehicle. I should not have thought that that issue was in contention. The power to do so is given under paragraph 2 of Schedule 13 to the Immigration and Asylum Act 1999.
At present escorting officers cannot enter premises other than by consent. Where such consent is not given, the detained person is taken to the nearest police station to be searched. As we said in Committee, that can be embarrassing and laborious for the detained person. There are therefore real problems that the clause is an attempt to address in a limited, practical and reasonable way by ensuring that the escort can carry out the necessary search of detainees at the address at which they have been detained.
I stress that the power of entry under the clause is limited. It can be exercised only when the escort is accompanied by police or immigration officers who have a warrant to enter the premises where the person has been detained—where the escort will not be acting alone and the address will have already been entered. We took note of concerns expressed earlier about the consequential power of escorts to use force in exercising the principal power to enter an address. As a result, the provision regarding the use of force is now explicitly qualified to state that only reasonable force
may be used. That places a greater burden of responsibility on the official. However, the provisions of Clause 57 are a necessary remedy to a situation that is causing problems.On the question of how complaints against escorts are handled, the initial complaints will be directed to the Immigration Service's escort contract monitor, but under Schedule 13(1), the monitor is required to investigate and report to the Secretary of State on any allegations made against an escorting officer in respect of any act or failure to act while escorting a detained person. The detainee custody officer certificate may be suspended during such a process and may subsequently be revoked. So there are clear sanctions—also, of course, escorts are ultimately answerable in law for any action.
On the other question of why escorts are not subject to the Police and Criminal Evidence Act 1984 code of practice, certain provisions of the PACE codes apply to the search of persons arrested by immigration officers. However, in relation to escorts' entry to premises, it will be the police and the immigration officers who will effect the entry to premises, with the escort following.
Having made those points and given my explanation of why the provision is necessary, what are the safeguards and what is the complaints procedure for redress, I hope that the noble Lord will not be minded to press the amendment.
Lord Dholakia: My Lords, I thank the Minister for his explanation. I apologise for any confusion about Amendment No. 44, which my noble friend mistook. Will the Minister confirm that he said that a custody officer would not have power on his own to enter premises, he would be accompanied by police or an immigration officer in possession of a warrant who could do so?
Lord Filkin: My Lords, that is absolutely correct.
Lord Dholakia: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin moved Amendment No. 45:
- After Clause 59, insert the following new clause—
The noble Lord said: The amendment arises from the judgment of Mr. Justice Crane in two judicial review applications brought by Mr. Hwez and Mr. Khadir, given shortly after the Bill completed Committee stage. Not to detain the House excessively, clearly there are problems as a consequence of the application of that judgment for the effective application of the asylum and immigration control processes. The judgment of the House of Lords is not expected before July, so the Government seek through the Bill to take power to put the issue beyond doubt and peradventure. I beg to move.
Lord Renton of Mount Harry: My Lords, for the Minister to say that the Government want to put the issue beyond doubt and peradventure because of one case—one judgment—is the most marvellous way to describe building a mountain out of a rather small molehill. It is extraordinary that the new clause, which, as the Minister will accept, immensely broadens the Secretary of State's powers to detain people under the immigration Acts, should come before Parliament at this late stage, when the Bill has been discussed in another place since May and we are on the second day of Report in this House. There has therefore been no opportunity for widespread reflection or consultation on what I think that the Minister would concede is a remarkable new clause.
It is remarkable, first, for its extraordinary drafting. I walk on thin ice here; I am not a lawyer. During all the years when I was an immigration Minister, I never became an expert immigration lawyer. But during 23 years in the House of Commons, I had to read an awful lot of Bills. The new clause states:
I understand what the Minister said: there is one case about which the Government are worried so they needed to table a new clause. Obviously, there will be an opportunity for it to be debated at greater length on Thursday in two weeks' time—I think that that is what the Minister said. Is that correct?
Lord Renton of Mount Harry: Oh, this is once and for all.
In fairness, other noble Lords on the Government Benches, such as the noble Lord, Lord Judd, may want to ask some of the same questions as me. Roughly translated, the clause appears to mean, "We are not very good at removals. We do not anticipate getting any better. Nor do we anticipate committing the expertise and resources to the area that would make us better. So we shall take power to continue to detain people without judicial oversight, limit of time and, what is more, we shall make that power wholly retrospective". That is amazing.
Either the Government intend to take powers that will put them in breach of their obligations under Article 5 of the European Convention on Human Rights or lazy drafting has resulted in a provision that will have that effect. The advice given to me by the Immigration Advisory Service, to which I am grateful for bringing the matter to my attention, is that the decision appears to pre-empt the judgment in an important case—the Oakington case—in which the judgment of the House of Lords is currently awaited. I understand that the issue before the House of Lords is whether locking up asylum seekers to facilitate the process of administering their claims to asylum amounts to a deprivation of liberty and is unjustified under Article 5(1)(c) of the European Convention on Human Rights.
The Court of Appeal reversed the decision of the High Court, which the Joint Committee on Human Rights summarised as being that,
I do not want to take up your Lordships' attention for too long on the matter, but on the question of lazy drafting, will the Minister clarify the meaning of the word "decision" in new subsection (2)(c)? It appears to be without restriction. Moreover, what is meant by the reference in subsection (2)(a) to legal impediments due to international obligations? If a person cannot be removed because of the United Kingdom's obligations under the 1951 refugee convention or under Article 3 of the ECHR, is that reason enough to detain the person, none the less? From the way that the clause is worded, it appears to be. The legitimation of detention of a person who cannot be removed from the UK because of a legal impediment is worded so as to shroud the actual meaning.
I shall give an example in layman's language. Subsection (2)(a) would refer to groups such as Zimbabweans. The Minister knows that, when the Government decided earlier this year that it would be impossible, impractical and wrong to continue to
Lord Lester of Herne Hill: My Lords, optimist that I am, I hope to persuade the Minister that the right procedure would be not to move the amendment today but bring it back at Third Reading. I shall explain why.
I echo what was said by the noble Lord, Lord Renton of Mount Harry. There is a serious danger that, if Parliament were to accept the new clause, it would authorise breaches of the right to liberty in Article 5 of the European Convention on Human Rights. I shall come to the strange wording, of which I seek clarification, in a moment.
The first thing that I must say is that, unfortunately, the Joint Select Committee on Human Rights, of which I am a member, is taking evidence in the Antipodes and is, therefore, not available to give advice to the House about its views of the compatibility or otherwise of the clause with the European convention. The committee's legal adviser, Professor David Feldman, is in this country, and I would like to have time to consult him and, if authorised, present his view to the House before we take this step.
In a commendably brief speech in favour of the amendment, the Minister did not explain to the House—certainly not to me—the reasoning behind the High Court judgment, why it creates difficulties and whether it relates to human rights issues. I know nothing of the particular case. However, I do know that it is unusual, to say the least, for Parliament to be asked to give the Minister powers that will nullify a future decision of the House of Lords in a pending case. That applies not only to the case to which the Minister referred but to the Oakington case, which is pending before the House of Lords as well. The noble Lord, Lord Renton of Mount Harry, referred to that. Parliament has no access to independent legal advice on such matters, other than through the Joint Select Committee on Human Rights. Given that the committee cannot give that advice at the moment, for the reason that I have given, where is the Minister's explanation of his presumed view that the amendment is compatible with Article 5?
If the Committee were in the country, the procedure would be different. We would identify a problem—as in Amendment No. 45—and ask the Minister to give us his reasons, in writing or orally, why he considered that the provision is compatible. We would then comment on the Minister's views and refer them for the attention of both Houses. That procedure could not be followed in this case, and the Minister has not given the House the benefit of his considered views and
We should consider what the clause says. It is bizarre and curious. It is headed, "Liability to detention: interpretation". It is a general clause, which purports to widen the Home Office's powers of detention. It states:
Let us consider a case that arose last year with the anti-terrorism law and a suspected terrorist who had to be detained because, if he were sent to another country, he would face the death penalty or torture, in breach of Article 2 or 3 of the European convention. The Government rightly took the view that holding someone in those circumstances would be in breach of Article 5 of the European Convention on Human Rights, unless there were a derogation. So, a derogation was made. There was a huge debate about it in both Houses, and its compatibility is now being tested in the courts. However, the Government did, at least, seek a derogation for a suspected terrorist in those circumstances.
However, this provision does not apply only to a suspected terrorist, a case that the present derogation would cover. It covers anybody who is liable to be detained but,
If I have got that right—and I ask the Minister to make quite clear to the House his understanding of the full scope of the power and his reasons for believing the powers sought to be compatible with Article 5, notwithstanding the absence of derogation—I must protest with as much eloquence as I can muster. It is entirely wrong that powers of this magnitude should
I cannot expect the Minister to give a full explanation to the House today, without notice, of his reasons for considering the provision to be compatible with the convention. I cannot expect him to set out the whole High Court decision to which he refers—it would be boring if he had to do so—and I cannot expect him to explain why it is right prospectively to make the rulings of the Law Lords irrelevant to the law of this country. However, given that the Joint Select Committee on Human Rights is not here to do its job and that Parliament has no access to independent legal advice, I respectfully suggest, in deference to our accountability to Parliament as law makers, that we should postpone consideration of the amendment until the House has had the benefit of a full explanation and can consider it at Third Reading.
"LIABILITY TO DETENTION: INTERPRETATION
(1) This section applies to the construction of a reference (in any terms) to a person who is liable to detention under a provision of the Immigration Acts.
(2) The reference shall be taken to include a person if the only reason why he cannot be detained under the provision is that—
(a) he cannot presently be removed from the United Kingdom, because of a legal impediment connected with the United Kingdom's obligations under an international agreement,
(b) practical difficulties are impeding or delaying the making of arrangements for his removal from the United Kingdom, or
(c) practical difficulties, or demands on administrative resources, are impeding or delaying the taking of a decision in respect of him.
(3) This section shall be treated as always having had effect."
"This section applies to the construction of a reference (in any terms) to a person".
What on earth does that mean? Does it just mean that the draftsman could not be bothered to go through all the immigration Acts to which that may refer, and so simply said, "It will refer to everything that is possibly involved"? I have never seen such terms before. On first reading the new clause, I did not pick up just how serious that was and to what extent it increases the detention powers of the Secretary of State.
"This section shall be treated as always having had effect".
That is the most marvellous example of retrospection that I have ever read.
"it is lawful to detain a person in a detention centre while the application is considered, provided that there are suitable safeguards . . . With regard to the length of detention, the question is whether it is disproportionate to the purpose of detention having regard to the conditions of detention and any special circumstances affecting the individual. The Court of Appeal appeared to hold that detention of asylum-seekers which satisfied those tests did not amount to a deprivation of liberty under Article 5(1)."
It must be said that the JCHR's words, "appeared to hold", may be read as an indication that the decision in the House of Lords in this case is far from a foregone conclusion—which, I understand, is also the view of other commentators.
6 p.m.
"This section applies to the construction of a reference (in any terms) to a person who is liable to detention under a provision of the Immigration Acts".
That is as broad as could be. Then, it states:
"The reference shall be taken to include a person"—
to be detained—
"if the only reason why he cannot be detained under the provision is that—
(a) he cannot presently be removed from the United Kingdom because of a legal impediment connected with the United Kingdom's obligations under an international agreement".
The two most relevant international agreements are the European Convention on Human Rights and the refugee convention.
"cannot presently be removed from the United Kingdom, because of a legal impediment"—
whatever that means—
"connected with"—
whatever that means—
"the United Kingdom's obligations"
under the European Convention on Human Rights or the refugee convention. In other words, as I read it—I am sure that I will be corrected if I am wrong—it authorises the detention of someone who cannot be removed from this country to face the death penalty or torture but who is not a suspected terrorist and has not been convicted, or is not suspected, of a serious criminal offence.
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