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On Question, amendment agreed to.
Clause 65 [Detention centres: change of name]:
Lord Filkin moved Amendments Nos. 60 and 61:
On Question, amendments agreed to.
Lord Filkin moved Amendment No. 62:
The noble Lord said: My Lords, on Report we discussed an earlier version of Amendment No. 62. There was both concern and confusion, perhaps in equal measure, about exactly what it sought to do. We have since written to the noble Lords who spoke in that debate and provided an explanatory memorandum, which I hope explains the position much more clearly and puts at rest noble Lords' concerns.
In short, it tries to establish the position which has always applied; that if the person who fell into one of the categories of people liable to be detained under the Immigration Acts but who could not lawfully be detained for one of the reasons listed, the alternative of granting temporary admission or release subject to conditions should be available.
That is what everyone has understood the law to have been up to this point in time. As to a person who qualifies in principle for detention but who cannot be detained for specific reasons, the Government, in using their immigration powers, can grant him temporary admission and release subject to conditions, such as reporting conditions.
That was always understood to be the position. However, in the case of Hwez and Khadir, Mr Justice Crane held that the term,
I shall not go into great detail. I think that the House can understand how difficult that would be. In order to put the matter beyond debate we have sought to clarify the law by this amendment. I am happy to speak in more detail if that would help. Perhaps I should, given the experience on Report.
There has been a briefing circulated by ILPA based on the previous wording suggesting that the intention is to create a blanket power to detain. That is not the case. But where we cannot detain someone, we must continue to be able to require them to live at a particular address and to report to the police or to the Immigration Service on a regular basis.
Following the discussion on Report, the clause has been amended to reduce its breadth. Its application is now explicitly restricted to provisions which do not actually create a power to detain. There is therefore no question of extending the existing detention powers or of creating a new power, and consequently no question of the clause being incompatible with Article 5 of the ECHR either. I hope this satisfies the concerns expressed by the JCHR.
The clause makes clear that, when used in non-detention provisions, the term "liable to detention" includes people who cannot be detained for one of the reasons listed in subsection (2). That in turn means that they can continue to be given temporary admission, and, if appropriate, residence and reporting conditions will continue to apply. Subsection (3) of the amendment provides that it will always have applied.
I recognise that there may be anxiety about the retrospective effect, but I have already given a clear undertaking that no one will face criminal charges for failing to comply with conditions solely as a result of the retrospective effect of this clause. I have also explained why the retrospective application is necessary. Without it, the Immigration Service would have to go through each and every case in which someone is on temporary admission, decide whether detention would have been unlawful at any stage and, if so, grant temporary admission again. That would be a mammoth—almost Herculean—undertaking. Giving the clause retrospective effect avoids that and will allow resources to be used more productively.
Amendment No. 62A to the amendment, tabled by the noble Lords, Lord Dholakia and Lord Avebury, would delete subsection (3) and remove the retrospective effect. I was disappointed that the Select Committee on the Constitution chose to describe my undertaking as no more than "somewhat reassuring". My words on that occasion are a matter of record and were chosen with care. My undertaking was not a reassurance; it was a clear statement of intent on behalf of the Government.
However, if that is considered insufficient, there is the further point that prosecuting authorities will be bound by Section 6 of the Human Rights Act 1998, and, once in force, the provision will have to be read in accordance with Section 3 of that Act. That being so, there can be no question of retrospective criminal liability or of a breach of Article 7 of the ECHR.
To repeat, no-one will be disadvantaged or penalised by the retrospective application and there will be substantial benefit to the public purse by doing through legislation what would otherwise have to be done by a team of officials. I hope that, having heard what I have said, noble Lords will agree not to pursue their amendment.
The Select Committee on the Constitution also expressed concern that by legislating before the Court of Appeal has heard the case we are interfering with litigation currently before the courts. We do not believe that that is the case. The Court of Appeal will not hear the case until early next year and the judgment is already giving rise to problems for the Immigration and Nationality Directorate. We want to be able to require people subject to immigration controls who do not have leave to be in the UK to live at a specified address and report to the police or the Immigration Service regularly. Such reporting requirements are an utterly normal and proper part of immigration processes. That is a matter of policy, and it strikes me that, as such, it is clearly and properly a matter for legislation. I beg to move.
[Amendment No. 62A, as an amendment to Amendment No. 62, not moved.]
Lord Renton of Mount Harry: My Lords, I thank the Minister for taking so seriously the comments made a fortnight ago by my noble and learned friend Lord Mayhew, my noble friends Lady Carnegy and Lord Carlisle and by the noble Lord, Lord Lester, who cannot be here today. I thank him too for the explanatory note that he had promised us and for moving the new clause.
My noble friends sitting in front of me who are lawyers—I am not—may have more to say about one or two of the words in the new clause, but I give my personal thanks to the Select Committee on the Constitution. In 23 years in the Palace of Westminster, I have never found that a speech of mine caused such a reaction as my remarks the other night, supported by my noble friends. I am amazed but delighted that the new clause would, according to the Select Committee on the Constitution,
That is quite a handful. Without rehearsing all the arguments in our debate on Amendment No. 3, it shows the necessity of having sufficient time to scrutinise legislation in the Commons and here. If we do not, we are liable to end up with bad laws. With the greatest respect to the Minister, if the original clause had been passed—if the errors had not been spotted—it would have been bad law.
As a layman, I find it hard to grasp the distinction in meaning between a person "liable to detention" and "a power to detain", which is, in essence, the Minister's point. His reason for that is that previous immigration Acts do not use the phrase, "liable to detention". Any layman would assume that "liable to detention" gave a power to detain. That is a commonsense interpretation. However, from what we are told, that is not the case and so the new clause makes that clear.
That leads me to say that the Bill is far too complicated. I do not understand how anyone—any lawyer without huge immigration experience—could properly wend his way through it. It makes enormous reference to previous Acts—a practice to which my noble friend Lord Renton constantly objects. Time has come for a proper consolidation Bill to pull all those things together so that they are explicable to the ordinary person.
The new clause clearly anticipates an unfavourable result from the Court of Appeal to Mr Justice Crane's interpretation of "liable to detention". That is one reason for it. Its retrospective nature remains. It is clearly stated in the Minister's explanatory letter that,
In all my time in the House of Commons, I always voted against retrospection of any sort. I considered it bad policy. The provision is an attempt to get the Government out of a muddle forced on them by one judgment and one judge's interpretation of the meaning of the phrase "liable to detention". But this is dangerous territory. I do not quarrel with the new clause; the Government have done their best at this stage. But they are still skating on thin ice. None the less, I thank the Minister for the time and trouble he has taken.
"( ) At the end of section 11(1) of the Immigration Act 1971 (c. 77) (person not deemed to have entered United Kingdom while detained, &c.) there shall be inserted "or section 61 of the Nationality, Immigration and Asylum Act 2002"."
Page 38, line 19, at end insert—
"( ) section 141(5)(e) and (6) of that Act (fingerprinting),"
Page 38, line 25, after second "of" insert "the"
After Clause 65, insert the following new clause—
"CONSTRUCTION OF REFERENCE TO PERSON LIABLE TO DETENTION
(1) This section applies to the construction of a provision which—
(a) does not confer power to detain a person, but
(b) refers (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."
"liable to be detained",
did not refer to the category of person, but in effect means,
"could lawfully be detained at that moment".
In other words, if the point is reached where someone can no longer be lawfully detained, the alternative of granting temporary release on conditions is not available. That would apply even where the person is already on temporary admission and is not actually detained when the point at which his hypothetical detention would not be lawful is reached.
"threaten the following constitutional principles ... the rule of law . . . by retrospectively altering the liabilities and obligations of people who are liable to removal from the United Kingdom pending their removal . . . the rule of law . . . by depriving people of the benefit of judgments in their favour . . . and . . . the separation of powers between the judiciary and the legislature, and the rule of law . . . by interfering with litigation currently before the courts".
"It would be a truly Herculean task to go through all the thousands of cases of people on temporary admission to identify who might have been affected by the judgment in Hwez and Khadir"—
which is the case on which Mr. Justice Crane pronounced and which is now being appealed to the Court of Appeal, and then, possibly to the House of Lords.
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