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The Earl of Sandwich: Perhaps I may repeat what Jack Straw said during the debate on Part III of the Immigration and Asylum Act 1999. He stated:

Part III was then repealed by the Nationality, Immigration and Asylum Act 2002. Angela Eagle MP said in Committee that the repeal was an administrative decision based on the view that automatic bail hearings,

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What I cannot understand is that a Labour government, which was concerned enough about detainees to pass legislation to protect their rights in 1999, decided three years later that bail mechanisms were unnecessary and bureaucratic. As the noble Lord, Lord Avebury, said, by 2005, many more people were being detained and there is a lot more public concern.

At Second Reading I mentioned the situation at Oakington. The official involvement of Her Majesty's Inspector of Prisons under Clause 45 is of course welcome since it should demonstrate greater official interest in the detention estate, and there is room for that. It may also be helpful for this Committee to have one or two other facts about detention.

There are no official statistics of the numbers detained, which obviously fluctuate wildly. But, as the noble Lord, Lord Avebury, has said, there has been a significant increase in the use of detention. The Government's own figures to the end of June 2005 show that more than 20 per cent of detainees had been detained for over three months, and in 55 cases for over a year. It will get worse under the five-year strategy which anticipates greater use of detention. The real sufferers are the detainees, including genuine but unrecognised asylum seekers who have had no automatic independent review. Many have poor, if any, legal representation. HMIP said last year that,

As a patron of Haslar Visitors Group which works very closely with BID South, I know that BID South is so overloaded that nobody gets a bail hearing through that organisation until they have been in detention for at least three months. But once taken on they have a 50 per cent success rate. The promised legal advice scheme for detainees has still not started at Haslar, and is not likely to impact on bail as there is to be only 30 minutes of free advice. The scheme will in any case be a second rate service, as it is to be provided over the telephone. Telephone advice is particularly unsatisfactory for people for whom English is a foreign language.

There are also human rights issues, and I expect others who are more qualified will know the arguments already rehearsed in the European Court in the case of GB v Switzerland where the court ruled that it is for the state to organise its judicial system in such a way as to enable its courts to comply with Article 5 safeguards.

In conclusion, I hope that the Minister recognises the need at least to reconsider the Government's decision in 2001. Practical problems are no excuse for the denial of a fundamental right of independent judicial oversight. Now is the time for Parliament to act to put in place legal safeguards against prolonged and unnecessary detention.

The Lord Bishop of Oxford: I rise in support of Amendment No. 67 which would provide automatic bail hearings. The Government claim that detainees
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have the opportunity to claim for bail through judicial review and habeas corpus, but apart from the expense and complication of such procedures there are two fundamental reasons why the situation is difficult. First, a great number of detainees simply do not know that they are allowed to make an application for bail. Bail for Immigration Detainees (BID) quotes one detainee as stating:

Another person stated:

That is clearly a crucial point. Other noble Lords have emphasised, or will emphasise again, that we all know the sheer difficulty of getting any legal representation for detainees.

A large number of people are being held in detention, as has been emphasised. In 2004, some 20 per cent were held for longer than three months and 55 people for over a year. As was subsequently shown, we know that many of those people, if they had had automatic bail hearings, would have been out before eight or 36 days. The noble Lord, Lord Avebury, gave a very moving example from his own experience. In another example, a man was detained for eight months before BID made a bail application on his behalf. At that bail hearing the Home Office did not contest his release and the Immigration Service could offer no reason for incarcerating him for over eight months. He was released with surety and no reporting conditions and is now living with relatives and has a new solicitor.

Automatic bail hearings would ensure that such miscarriages do not take place. We know from the Human Rights Act, which was quoted by the noble Earl, Lord Sandwich, that we should make provision for such hearings, and which the then Home Secretary Jack Straw said should be made provision for in the earlier Bill. So I strongly support the amendment.

Lord Hylton: I rise to speak to Amendment No. 68, and I am sure that the noble Baroness can be in no doubt about the strength of feeling in your Lordships' House on this subject.

My new clause is designed to offer an alternative form of review of the reasonableness of the detention of individuals, not by an official of the executive branch but by a person holding judicial office who is accustomed to imposing custodial sentences in appropriate cases. The UNHCR has long been concerned about how reviews of detained asylum seekers are conducted. The London office of the commission has stated that the detention of asylum seekers is inherently undesirable and that there should be a presumption against its use. Its Executive Conclusion No. 85 of 1998 stated:

that is, children,

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That was still the case here in December 2001, when the UN Human Rights Committee reported on the United Kingdom. It found that some people were being detained for reasons only of administrative convenience. The UNHCR has expressed special concern about the detention of vulnerable people. Those obviously include children and pregnant women, but also victims of torture, people with a disability and unaccompanied elderly people. The UNHCR believes that such people should be detained only when a qualified medical practitioner has certified that detention will not further harm their health or wellbeing.

7.30 pm

It seems clear that vulnerable people are still being detained. In June 2004, 60 children were being held; in June 2005, of those detained under the Immigration Acts, 70 were under 18 years old. Her Majesty's Chief Inspector of Prisons concluded in her latest report:

The noble Lord, Lord Avebury, and my noble friend Lord Sandwich have mentioned that Part 3 of the Immigration and Asylum Act 1999 made provision for an automatic judicial review. Alas, it was never brought into force and was repealed by the 2002 Act. It is also clear that the theoretical safeguards of bail are often ineffective, on account of ignorance, as explained by the right reverend Prelate the Bishop of Oxford, who has full knowledge of what happened in the past at Campsfield, and because of sheer lack of means. If a large sum of money is set as the bail condition, it is often not possible to find it.

I have therefore provided for a regular weekly review of cases by a magistrate. As we all know, magistrates are evenly distributed across England and Wales and many have very relevant experience in the juvenile courts. I suggest that my amendment is preferable to that of my noble friend on the grounds that asylum and immigration tribunals are already very busy hearing appeals and may not have the capacity to review detention. I accept that weekly reviews may be a little too frequent, but I believe that nothing less than an initial review followed by monthly re-examinations is the minimum acceptable. I would be largely satisfied, however, if the Government would say that there will be a system for judicial review of all detainees falling within the categories considered vulnerable by the UNHCR.

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