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Lord Kingsland: My Lords, I, too, should like to ask the Government about the constitutional propriety of what they are doing. As I understand it, the case of Hwez and Khadir was decided by Mr Justice Crane, among other things, on a human rights issue. I am assuming that that is so. If it is the case, there must be a chance that the Judicial Committee of this House will confirm that judgment.
If the Government proceed with this amendment, therefore, there will be a clear incompatibility between statute law and the European Convention on Human Rights. If this legislation is on the statute book by the time the Judicial Committee takes its decision, that incompatibility will have to be declared by the committee. Yet the Government have already certified the Bill as being compatible with the European convention.
The Government know all of that in advance. Surely the Government must accept that, in the light of that knowledge, it would be wholly inappropriate to pursue this amendment.
Earl Russell: My Lords, the noble and learned Lord, Lord Mayhew, issued us with an historical challenge: to find anything similar providing that a restriction on liberty should always have had effect. Before visiting the Library, I cannot confirm it, but I believe that there is one precedent; namely, the replies to the questions of Richard II to the judges in 1386. Within 18 months, those judges had been impeached—and I do not need to tell your Lordships what happened to Richard II.
Lord Lester of Herne Hill: My Lords, before the Minister replies, since I raised the matter in what he may regard as high-falutin terms, perhaps I may respond to the information that he has given. I have listened carefully to him and in so far as I understand the technicality of what he is saying—I shall certainly want to read his remarks in Hansard—the position is this. This provision, although its rubric is,
- "Liability to detention: interpretation",
Lord Filkin: I thank the noble Lord, Lord Lester, for his thoughtful suggestion. I shall consider it and see
whether a redrafting of the amendment would aid clarification and might aid the appearance of better law-making.I shall not respond in detail. It has been helpful to hear the challenges. We shall examine this issue in detail and publish Explanatory Notes. That will give the House a proper opportunity to see, with the benefit of those notes and some time, on the record, whether there are grounds for the concerns raised.
The timing of the introduction of this new clause, on Report, is unavoidable in that the judgment did not take place until 29th July. For the reasons I have indicated, we feel that there are pressing issues. Exactly as the noble Lord, Lord Lester, said, we are talking essentially about the power to grant temporary admission, not the interpretation of the power to detain. However, I shall not press that point at this stage. Let the record be inspected; let us put out Explanatory Notes; and, if it would help the House, let us offer bilateral discussions between now and Third Reading, so that one can try to ensure that there are no misinterpretations. For the avoidance of doubt, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Avebury moved Amendment No. 47:
- After Clause 60, insert the following new clause—
The noble Lord said: My Lords, we return to a point that we raised in Committee. It relates to the fact that, in the past, adjudicators have demanded two sureties. That has created enormous difficulties where the sureties are put up in one part of the country, the adjudicator is hearing the case in another, and the lawyers come from a third. Enormous efforts have to be made by organisations such as BID to provide the necessary amounts for the sureties demanded.
We have consistently demanded that the adjudicator should have power not to demand any sureties, or to demand one surety or two sureties if that is what he thinks proper. There must be very few cases where the requirement for two sureties, which has been regularly observed in the past, is really necessary from the point of view of ensuring that a person responds to bail.
We held discussions with the Minister during the summer and he gave us an assurance that the adjudicators were already complying with what we are demanding; namely, that they should have power in suitable cases not to demand any sureties. I am sorry to tell the Minister that only this afternoon I was
I hope that the Minister will take this opportunity to set out the position clearly on the record. I hope, further, that the rules can be amended, if that has not already been done, so as to put the matter beyond doubt. It is a burdensome requirement and it is not necessary. I beg to move.
Lord Hylton: My Lords, the present situation is that asylum seekers and other immigration cases are being detained for up to 11 months. A small sample survey that was quoted in your Lordships' House earlier today showed that there was a four-month average. That is a very unsatisfactory state of affairs that we thought had been remedied by the 1999 Act, which provided for automatic bail hearings. Regrettably, that part of the Act was never brought into force, and, today, Amendment No. 46, which would have revived it, was not even moved.
Therefore, we urgently need some form of automatic bail hearing, reasonable conditions of bail—not demands of £1,500 a head on people who arrived in this country almost penniless—and written reasons for the detention, so that the adjudicator or the magistrate can consider the matter properly. I hope that the Government will take this amendment rather more seriously than they took the previous one.
The Lord Bishop of Portsmouth: My Lords, I wish to follow the noble Lords, Lord Hylton and Lord Avebury, in speaking to this amendment. It is yet one more example of how the Bill can be made more comprehensive, accountable and—in the best sense of the word, because I know that it has a sentimental sense also—compassionate. Given my own experience of meeting those involved in bail hearings and in dealing with asylum seekers, I hope that the amendment is given a sympathetic hearing.
Lord Borrie: My Lords, I have some queries. The amendment seems extremely restrictive in its statement that,
Lord Dubs: My Lords, I did not intend to intervene in this debate but I must take issue with my noble friend Lord Borrie. Essentially, we are talking about innocent people who have not been charged with a criminal offence. Normally, bail is granted when dealing with criminal offences. These are innocent people, so the concept of surety should hardly apply. From my knowledge of asylum seekers, I find it difficult to believe that any of them would have the money to provide any surety unless they had friends here who could do it for them. I find it difficult to envisage circumstances where it is necessary to detain people but where a surety would make it OK to let them out. I do not understand what the Government fear those people might get up to in respect of which a sum of money would make the activity all right. I am puzzled; I would have thought that if it is inappropriate to detain people, one does not need a surety and they should just be released. Perhaps my noble friend could clarify the matter.
Lord Filkin: My Lords, I shall seek to do my best. The option to seek sureties when granting bail, as the House knows, is an established part of the bail process. The purpose of requiring individuals to stand as surety is to try to ensure that the person bailed appears as required at the end of the bail period. That is a sensible measure.
Under the bail arrangements for immigration detainees, an applicant for bail is required, when he applies to an adjudicator for bail, to put forward the names of two persons who would be willing and able to act as sureties in the event that bail is granted. As the noble Lord, Lord Avebury, will know, planned changes to the procedure rules will replace this requirement so that any person may act as a surety. This will be put into effect when new procedure rules are issued following the enactment of the Bill. We wrote to him on 3rd September setting that out.
However, even at present, there is no statutory requirement on an adjudicator to require that sureties stand in every case. An adjudicator may not always consider it necessary or appropriate to require persons to act as sureties before granting bail. However, where they do, it is rightly for them to judge that this is the case and to judge the amount of recognizance in which the sureties should stand. These decisions are already taken in the light of the circumstances of the detainee and of the persons acting as sureties.
The current legislation, we believe, provides a satisfactory framework in which these matters of judgment may be exercised. It is already the position that sureties will not be needed in every case. It is the judgment of the adjudicator as to whether to impose them, and we believe that adjudicators and immigration officers recognise this fact. It must be
"BAIL HEARINGS: SURETIES
(1) This section applies in a case where the Secretary of State, an immigration officer, an adjudicator or the Tribunal has power to release on bail.
(2) Sureties may only be imposed where absolutely necessary to secure compliance with any conditions of bail, taking into account the personal circumstances of the detainee.
(3) If sureties are imposed the amount, if any, in which such a surety shall be bound shall be reasonable."
"Rule 34 of the Immigration and Asylum Procedures Rules requires a written application for bail to provide two sureties. No sureties have been offered in this case".
So adjudicators are continuing to observe that provision in the rules and nothing has been done to draw their attention to the fact that they are no longer required to do so.
"Sureties may only be imposed where absolutely necessary".
I am unsure of the current position; it is probably that sureties are asked for when deemed necessary or appropriate. It is an established tradition of all bail law that those in the position to grant or refuse bail have an option to seek sureties. To suggest that they should be sought only where absolutely necessary is extremely strong and perhaps too heavy a hobbling condition precedent to be justified. The last part of the amendment states that if sureties are imposed the amount should be reasonable. That is the present position, so I am not sure why the provision needs to
be there and I am not bothered by it, one way or the other. However, I am bothered by the provision that requires sureties to be requested only when absolutely necessary.
6.45 p.m.
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