Committee (3rd Day) (Continued)
Clause 8: Support where asylum claim inadmissible
Debate on Amendment 57C resumed.
My Lords, I had got as far as “My L—” when I was interrupted. I am sorry, I do not mean “interrupted”: I mean when we heard the Motion that the House be resumed. It was not going to be a major speech—it still is not, although I could have spent the last half-hour working on it.
I thank the noble Baroness, Lady Lister, who dealt with the issues very comprehensively, and the Refugee Council, which has been so helpful in briefing us. I simply observe the irony of our debating state support in the context of state-inflicted detention.
I apologise to the Committee for speaking twice, but of course this is Committee so I can do it again.
To reiterate some of the issues that the noble Baroness, Lady Lister of Burtersett, raised, this is an issue which you need to understand if you are to propose and manage this policy and move it further forward. “What happens next?” is not just a big question, it is of crucial importance to people and people’s lives. I will not repeat my statements about assessments, which are well made and obviously made all the time, but we have heard an exposition of this issue, which needs to be resolved. We need answers to those questions.
My Lords, I thank my noble friend Lady Lister for introducing this group of amendments, which concern the duty to remove those who are not detained, and their access to support because they would be otherwise destitute.
Clause 8 amends relevant legislation to provide support on the same basis as for those whose claims are declared inadmissible under Section 80A or 80B of the 2002 Act. My noble friend introduced her amendments in great detail. They would allow for appeals to be made on decisions around support. They would allow financial support to be provided where accommodation support is not needed. They would allow people awaiting decisions on accommodation support to be provided with interim accommodation. They make it clearer that if someone has not yet been removed from the UK, despite the duty from the Secretary of State to do so, they face a genuine obstacle. As my noble friend said, the Government must ensure that no one awaiting deportation faces destitution and danger.
Given the questions about the Government’s ability to actually remove people given the lack of returns agreements, what assessment have the Government made of the support that will be needed? We read in the newspapers that the Government are renting two more barges. Of course, the numbers the barges can accommodate will not touch the sides of the amount of accommodation that will be needed.
My noble friend Lady Lister and the noble Lord, Lord German, asked a number of detailed questions, as did the right reverend Prelate the Bishop of Durham, who I suspect is getting his train as we speak. As the right reverend Prelate said, in practice it will be local authorities, faith groups and voluntary organisations which will be picking up the pieces if there is not adequate government support for people who find themselves in this position. I will listen to the Minister’s response with interest.
My Lords, Clause 8 ensures that there is support available to individuals who would otherwise be destitute where their asylum claims have been declared inadmissible, pending their removal from the United Kingdom. It also seeks to incentivise those whose asylum claims have been declared inadmissible to comply with the arrangements to remove them from the UK, whether that be to their country of origin—where it is safe to do so—or to a safe third country. These provisions will support the overall objective of the Bill and ensure that those who come to the UK illegally will not be able to stay. Pending their removal, we will ensure that we support those who are complying with arrangements for removal. I make no apology for introducing these measures to protect and preserve the integrity of our asylum and migration system.
I am grateful to the noble Baroness, Lady Lister, for setting out her amendments to Clause 8. Amendments 57C and 57F seek to create a right of appeal against a decision to refuse an application for support under Section 95A of the Immigration and Asylum Act 1999, which would take effect only if supporting provisions in the Immigration Act 2016 are brought into force. The Government keep these matters under review but I can answer the noble Baroness’s question directly: there are no current plans to bring those measures into force, and so we consider these amendments unnecessary. Therefore, those who are refused support under Section 4 of the 1999 Act will still be able to appeal the decision.
Similarly, we do not consider Amendment 57D necessary. As I have told noble Lords frequently throughout Committee, our intention is to detain and swiftly remove people. We expect that the overwhelming majority of those who fall within the scope of the duty to remove will need accommodation as well as financial support. These individuals will therefore be provided with financial support to meet their essential living needs, pending their removal from the UK.
Although I recognise the intention behind Amendment 57E, the Government do not consider it necessary to provide a statutory basis on which to provide temporary support. As I have said, our intention is to detain and swiftly remove those who enter illegally and meet the conditions in Clause 2. The details of how the scheme will work in practice, including the support provided during this interim period, are currently under active consideration. We are confident that there is sufficient scope to be able to provide adequate support to individuals pending a determination of their application under Section 4 of the 1999 Act. Obviously, we will bear in mind the contributions made during this short debate.
Finally, Amendment 57G seeks to amend uncommenced provisions in the Immigration Act 2016 and, in so doing, alter the long-standing position that Section 4 support would be available only to people who face a genuine obstacle in leaving the UK. The Government have no plans to implement the 2016 Act provisions in the immediate future; even if we were to do so, we see no need to alter the existing approach to eligibility under Section 4 for this group of people. Eligibility for Section 4 support is a long-standing position. As long as individuals whom we support pending their removal co-operate with the process, they will remain eligible for support.
The noble Baroness, Lady Lister, the noble Lord, Lord German, and the train-bound right reverend Prelate the Bishop of Durham asked about the Section 4 application form. We are working on the arrangements for implementing these provisions. As part of that, we will consider what changes, if any, are required to the Section 4 application form.
Where necessary, the Government will provide accommodation and basic support for those who are subject to the duty to make arrangements for removal and who are not being detained pending their removal. In answer to the right reverend Prelate, I can assure him that, with the changes made by Clause 8, we consider that there is sufficient legislative cover to provide such support where a person would otherwise be left destitute. On that basis, I invite the noble Baroness, Lady Lister, to withdraw her amendment.
My Lords, I am grateful to all noble Lords who have spoken, including the right reverend Prelate, in his absence; we know that he had to get his train. I am also grateful to the Minister for answering more questions than I expected him to be able to.
I am disturbed by the proposition that it is not necessary to provide a statutory basis for temporary support because the intention is to remove people quickly. The Government are the only people who think that removal will be quick. All the organisations on the ground predict a state of semi-permanent limbo—purgatory, as some of them have called it. There needs to be a proper statutory basis for the support that these people are provided with. I hope that the Minister will look at this point again.
Other noble Lords have asked questions that have not, I think, been answered. I would be grateful if the Minister or his officials could look through Hansard and answer any remaining questions. The noble Lord, Lord German, certainly asked a number of questions that have not been addressed. I will not detain the Committee now by pressing them—I am sure that the noble Lord will not either—but I ask that a letter answering those questions goes to the noble Lords who have participated in Committee before Report.
It would also be helpful if the Government published as clearly as they can a statement on what is proposed. We can piece bits together from the Minister’s reply today but the point has been made that local authorities, faith groups, refugee organisations and others need to start planning; they need to know. A clear statement would therefore be helpful.
I finish by quoting the right reverend Prelate the Bishop of Durham, who said that this is going to be like detention without walls. That is a very telling statement. It is important that we get this right. We do not want large numbers of people destitute on our streets because they are in this permanent limbo. I look forward to seeing what the Minister has to say in any subsequent letters but, for now, I beg leave to withdraw the amendment.
Amendment 57C withdrawn.
Amendments 57D to 57G not moved.
Clause 8 agreed.
58: After Clause 8, insert the following new Clause—
“Repeal of asylum seeker accommodation regulationsThe Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023 are repealed on the day on which this Act is passed.”Member's explanatory statement
This amendment provides for the repeal of the Houses in Multiple Occupation (Asylum-Seeker Accommodation) Regulations 2023.
My Lords, this amendment relates to a statutory instrument that has recently been approved.
I appreciate that the issues of the use of houses in multiple occupation for asylum seekers and the changes in the standards applying to such houses for that purpose may not have crossed the inboxes of most noble Lords; they certainly had not crossed mine until I was told that the SI changing the regulations was scheduled and found myself scheduled to speak on it. Like many such instruments, it was considered in Grand Committee and then went through the House very quickly. The purpose of the instrument is to make provision to exempt accommodation provided by the Home Office for asylum seekers from licensing requirements; that sounds quite straightforward.
My noble friend Lord Scriven and I spoke in the debate in Grand Committee because of our concerns and those of relevant organisations which were, I think it fair to say, caught out by the speed with which the instrument went through. We chose to use the mechanism of an amendment to the Bill to repeal the SI and thus bring it to the House.
I thank the noble Baroness, Lady Scott of Bybrook, who I am aware has sat through quite a lot of debates on the Bill without our getting to this amendment but appears unable to be here now. I guess that is how it goes when you are a Minister. I thank her and the noble Lord, Lord Murray, for the letter which my noble friend and I received. I particularly wanted to thank the noble Baroness for how she dealt with the questions raised in Grand Committee. My noble friend shot out very direct and pertinent questions at enormous speed and it is mostly his questions which the letter addresses. We will hear whether he is satisfied with that, and I will leave him to pursue those issues.
There are two broad areas of concern as well as a lot of detail: first, the condition of the accommodation in the new regulations in which asylum seekers will live; and secondly, the impact more broadly on this part of the rented sector. On the conditions, we have heard news over the last few days of asylum seekers sleeping in the street in protest at the conditions they were faced with, including sharing rooms with non-family members. There was quite a lot of reporting about what happened at a hotel in Pimlico, which should have blown apart the notion that a “hotel” in this context means five-star luxury.
In the case of houses in multiple occupation, they and “hotels” mean two or more households sharing basic amenities—bathroom, toilet and cooking facilities. HMOs are regulated and licensed. Licensing was introduced primarily to protect from fire, after a fire in 1981 in which eight people died and about 100 were left homeless, all of them having been living, I understand, in a warren of 56 bedsits. They were asylum seekers from South America.
Mandatory licensing by local authorities was introduced in 2004. It enables an authority to know where the HMOs are in its area because the landlord has to tell it when they apply for a licence. Among the standards required is that landlords and managers must be fit and proper persons.
I understand that provider staff who have had contact with asylum seekers in the hotels that have been used over the last months are required to be DBS checked and, to quote the Ministers’ letter, “have had appropriate safeguarding training”. I have to say that we have seen how well safeguarding has worked for asylum seekers in hotels.
Local authorities’ oversight of HMOs is funded by the fees paid by landlords, and it does not take much imagination to start to worry that the owners of properties which lend themselves to such use will see this as easier and more profitable than letting them as regular, standard —if I can put it that way—HMOs. Local authorities are to receive an incentive payment for beds available within an expedited framework during a four-month pilot. As I understand it, there is no commitment beyond the pilot and this is not, as I recall, in the instrument in any event.
Local authorities, as your Lordships will know, have homelessness duties. London Councils, in briefing us on the instrument, refers to London boroughs—of course, this is not unique to London by any means—
“facing an acute and worsening position”
and notes that
“the number of households owed a homelessness relief or prevention duty”
was considerably higher than a year ago. The briefing continues:
“Challenges in the private rented sector are making it more difficult for councils to procure and retain suitable accommodation, a situation exacerbated by competition with Home Office contractors for properties.”
The 25 London boroughs which provided data show that they
“procured 26% fewer private rented sector properties for homeless households in February 2023”
compared with a year ago. The total number of temporary accommodation properties requested back by landlords was 150% higher over the same period. The number of people in unsuitable B&B accommodation has gone up massively.
The impact on the supply of housing, as we predict will happen, will not be an unintended consequence. It is no wonder that over 130 organisations joined the Chartered Institute of Housing, the Joint Council for the Welfare of Immigrants and a major refugee charity in signing a letter to the Home Secretary and the Levelling-up Secretary about the detail of the scheme and wider issues. Their note on this letter says that
“the strain on the asylum accommodation system is due to excessive delays in asylum decision-making and the fact that those seeking asylum are not allowed to work”.
It then urges the Home Office to address these problems rather than deny people who are seeking sanctuary the basic accommodation rights that should be afforded to all tenants. I quote that not because it will be news to any Members of the Committee but because the points about the backlog, decision-making and the right to work always deserve to be emphasised. Shelter says that the housing emergency is likely to be exacerbated because of the risk of family homes being converted to Home Office HMOs, because of landlords being incentivised to pull out of letting to people who need to claim local housing allowance—which has been frozen for more than three years and so is less profitable to them—and because of landlords pulling out of offering properties to councils for use as temporary accommodation.
The Local Government Association has set out in a long briefing its asks, as it calls them. I will pick out just a few, because otherwise I could keep your Lordships here for considerably longer than I had planned to. One is that the sector is engaged in the development of the policy. Though the Government have said that they want to put engagement structures in place, there are no details yet. It wants to co-design with the Home Office how inspection teams will work across the two types of housing and share intelligence. Adequate new burdens funding to councils will not come as a surprise either, given what I have just explained. It is hardly an ask to ask to understand how HMO licensing will slow down procurement, because providers do not have to wait for an HMO licence. That is another point about engagement. Rightly, it wants to explore with the Home Office the barriers that the Home Office and its private sector providers identify, which could be addressed in ways other than with the regulatory change being further extended.
When I saw the title of this SI, I thought, “Oh, I can knock off a short speech on that on Sunday afternoon for Grand Committee”. When I started to think about the number of issues—which my noble friend is going to add to—the list grew and grew. That is why I beg to move Amendment 58.
My Lords, I speak in favour of Amendment 58, which I put my name to, moved by my noble friend Lady Hamwee. I draw the Committee’s attention to my interest as a vice-president of the Local Government Association.
I reiterate what my noble friend Lady Hamwee just said: history is important. The catalyst for licensing HMOs in this country was a fire in 1981 in which eight individuals were killed and 100 residents of 56 bedsits were affected. Those who survived and those who died were all asylum seekers. That was the catalyst for the HMO licensing regime. That is where the campaign really started. The key issue for the introduction of the HMO licensing was to allow local authority housing enforcement teams to hold HMO landlords in their area to account for providing national minimum standards, and for local authorities to know exactly where HMOs were, so that they could be inspected effectively.
When the statutory instrument was in Grand Committee, the Minister, the noble Baroness, Lady Scott, was very reassuring in telling the Committee that this had nothing to do with the dilution of standards and that it was all about speed to get houses for asylum seekers ready to go so that they could be housed. Speed can and does cut corners. It became quite obvious from the written answers we received to our questions in Grand Committee that the standards will be watered down, and in some cases will now be dangerous and potentially lead to fires and other issues that could cause fatalities. These are standards for homes, not houses but homes, for some of the most vulnerable people in the world.
There were 11 standards raised in Grand Committee, which included everything ranging from the electrical compliance of equipment to HMO landlords being fit and proper persons for those properties. Of the 11 standards, only one is either equivalent or better than the HMO licensing conditions. All the others are a dilution of the standards. For example, the licensing of HMOs minimum standards state that the electrical appliances and furniture supplied by the landlord must be maintained in a safe condition and that a declaration of safety for all electrical appliances and furniture must be supplied on demand by the authority. However, the Home Office equivalent asylum accommodation and support services contract states only that electrical appliances are required to be inspected once every five years. It says nothing about the condition of furniture.
On the condition of carbon monoxide safety, the HMO licensing scheme says that a carbon monoxide alarm is required to be installed in any room in the house that is used wholly or partly as living accommodation and contains a fixed combustible appliance other than a gas cooker, that alarms must be kept in working order, and that a declaration of the condition and positioning of smoke and carbon monoxide alarms must be provided to the authority on demand. However, the provision in the Home Office contract is just that a carbon monoxide alarm is required in a property that has a solid fuel or gas appliance. It says nothing about how they are monitored or positioned. Again, this is a very serious watering-down of house safety and standards.
Other questions were asked and the Written Answers that followed showed very little concern for the safety of the people who will be in these unregistered and unlicensed houses.
The Home Office, in trying to placate the Grand Committee, said it is doubling the number of people in its inspection team for monitoring Home Office properties as part of the contract. I asked what the new full-time equivalent number would be and how many, on average, would be available for each local authority area. The answer came back that the number would be doubling —no numbers, just doubling. If you have one and you get two, the number has been doubled. I expect the team to be more than one at present, so again I ask Minister what the number of full-time equivalent members of the team will be once it has doubled. Also, what is the average number for each local authority?
Another question asked at Grand Committee was whether the inspectors who go into these properties were independent of the Home Office. This is important, because the HMO licensing authority is an independent local authority that goes in with professionals who have absolutely no connection at all to the landlords. Are the inspectors who go into these properties independent of the Home Office? I am sure that noble Lords will not be surprised to hear that they are not independent of the Home Office; they are employed by and are part of the Home Office.
My noble friend Lady Hamwee raised concerns about unscrupulous landlords. These are not my words but the words of experts in the property field, who say that unscrupulous landlords will no longer wish to see themselves as part of a HMO licensing inspection and will just offer their properties, at a lower standard, to the Home Office for asylum seekers.
Noble Lords who spoke about this in Grand Committee were uneasy about the SI’s intentions and its implications. The answers that we have received mean that these regulations need to be repealed as a matter of urgency. Remember that HMO licensing came in because of the tragic deaths of eight asylum seekers. With the latest comments over the weekend from certain Home Office Ministers about the living conditions of people seeking asylum, with up to four people having to share each hotel room, it is clear that the Home Office cannot be trusted with the safety and dignity of those seeking asylum and their having safe, habitable accommodation. HMOs, regardless of who is living there, need to be safe and to be inspected by an independent local authority licensing scheme. That is why this statutory instrument should be repealed.
My Lords, I rise in support of Amendment 58. I am sorry that I could not be at the Grand Committee debate on the regulations because of another commitment. Given the representations that have been made by a range of an organisations, I felt it was important to say a few words.
All people should have access to secure, safe and decent accommodation, no matter what status they hold. While it is right that we should not have people housed in hotels for longer than necessary, the removal of so-called red tape, which potentially includes shortcuts around safety standards, as we have heard, seems exceedingly risky. Once again, we have been asked to put our trust in the Home Office and its subcontractors instead of properly resourcing local authorities to provide adequate housing. This is not the way to address the backlog or accommodation shortages. The speed of procurement should not come at the possible cost of life.
Earlier this month, while the Levelling-Up Secretary was unveiling new laws protecting renters’ rights, his colleagues were debating the Government’s intention to scrap HMO licensing for asylum seekers’ accommodation. That seems somewhat perverse. The Government state in their Explanatory Memorandum to the regulations that part of the rationale for the change was that subcontractors
“raised concerns that … regulation is posing a barrier to acquiring … properties”.
But the suspicion is that subcontractors’ concerns are motivated more by profits than by the need to reduce backlogs and move people into accommodation. As my noble friend Lady Taylor of Stevenage asked during the Grand Committee debate, what evidence is there—again there is this question of evidence; it seems that with every amendment we are asking for evidence—to suggest that this change in regulations will speed up procurement of accommodation? The potential to undermine safety and standards seems very risky if there is not clear evidence to suggest that it will achieve the Home Office’s intended outcomes. Local authorities are concerned that any further erosion of enforcement powers will lead to a decrease in accommodation standards, where the reverse is needed.
The excellent briefing from the Chartered Institute of Housing, Crisis, JCWI and others argued:
“The assertion from the Government that HMO licence levels of protection will be maintained in these properties, but overseen by the Home Office rather than the local authority, is deeply suspect. People are already losing their lives in asylum accommodation managed by private subcontractors on behalf of the Home Office”.
Echoing the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, it was alarming to read at the weekend that asylum seekers were left on the streets in Westminster for two nights running because of accommodation problems and that the Immigration Minister had led moves to require groups of up to four adult males to share single rooms in so-called Operation Maximise. Richard Drax, a Conservative MP, has equated this to putting them in prison. As the leader of Westminster Council commented, to ask people who are
“likely to have been through significant and traumatic events … to share an inappropriately sized room”—
we are talking about a single room here, not some palatial five-star room—
“with multiple strangers defies common sense and basic decency”.
Basic decency, as well as safety, is what is at stake with these regulations.
Can the Minister give us an assurance that Operation Maximise will be abandoned at once in the interest of basic decency? With regard to these regulations, can he reassure us that the Home Office or its contractors have the skills to make a proper assessment of the risks around fire safety that an experienced and qualified local authority environmental health officer would have?
In the recent debate in Grand Committee, the noble Lord, Lord Scriven, asked the Minister to confirm that the same conditions that apply to an HMO licence will be replicated in the contract with the provider of accommodation for those seeking asylum. I do not think that the noble Lord has asked this again tonight, but I hope he will forgive me if he has. As the DLUHC Minister was unable to answer the question because it related to Home Office responsibilities, perhaps the Minister could provide an answer now.
In conclusion, this amendment should have never been needed but, unless we get serious assurances around living and safety standards, I can only question how the Government have decided that creating unsafe homes and putting asylum seekers in them is a decent strategy. As the Chartered Institute of Housing has said, HMOs will undoubtedly prove cheaper, but at what cost?
My Lords, this amendment, at its heart, is about the Government’s proposal to exempt housing for asylum seekers from licensing conditions. My noble friend Lady Hamwee outlined the two principal areas of concern, which have been the thread throughout this short debate. One is the conditions of the accommodation and the second is the impact on the rented housing sector in its entirety. I would add that the limited number of properties that are available in the private rented sector is in danger of impacting seriously on the number of houses for people who are looking for that accommodation but are not asylum seekers.
I will ask the Minister as well about the devolved responsibilities in this area, because the private rented sector in Wales is quite differently managed under Welsh Parliament legislation. I would like to understand whether the Government have consulted the devolved Administrations to find out how they propose to deal with this matter. In the case of Wales, all private rented sector accommodation is required to be licensed, not just HMOs. There is a strict regime and landlords pay for that licence. Clearly, that has had some impact on raising standards. That is an important issue, and if it is going to be reduced further, the Government need to explain why.
My noble friend Lady Hamwee pointed out that there is a better way forward, and mentioned the need for a more collaborative, non-regulatory approach. My noble friend Lord Scriven pointed out that licensing provides protections, and I think we all understand that. He illustrated it by talking about smoke and CO2 alarms. The reduction in standards is implicit in the proposals that are contained in the statutory instrument. It seems to me that we need to have a proper inspection regime, as stated by my noble friend Lord Scriven. The noble Baroness, Lady Lister, raised the issue of the safety of people being at risk. That is at the heart of all this. Are we going to put the safety of this vulnerable group of people at risk by returning to the original situation before the HMO legislation came into place? Are we going to manage the contractors properly and correctly? Clearly, the process of creating unsafe homes is not in anybody’s interest in this country at all, and neither is placing people within them.
My Lords, I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, for moving this amendment. It was a good idea to address this issue in this context, even though it was fully addressed when the SI was debated. The Labour Party voted against the SI in the House of Commons, but it was not pushed to a vote in this House. Nevertheless, this is an appropriate Bill for us to address the issue again.
As we have heard, the regulations for HMOs were brought in following a fire in Notting Hill in which eight people died and almost 100 people lost their homes and possessions. Almost six years after that came the catastrophic fire in Grenfell Tower. These DLUHC regulations could lead to another fatal fire in an HMO used to accommodate people seeking asylum or other people in housing need. As we have heard from the briefings that we have all received—particularly the Shelter briefing, which was a particularly full briefing —people seeking asylum can be particularly vulnerable to fire risks, due to disabilities and health problems, being unaware of what standards to expect in a new country, being unable to read or speak England, and perhaps being reluctant, or less able, to complain to the authorities.
Parliament is finally about to pass the Social Housing (Regulation) Bill, which reintroduces the proactive regulation of social homes following the Grenfell Tower fire. The regulations addressed in the amendment go in the exact opposite direction.
The noble Baroness, Lady Hamwee, and the noble Lord, Lord Scriven, asked various detailed questions about whether the inspectors are likely to be independent of the Home Office. We have heard that they are not going to be. The point made by the noble Lord, Lord Scriven, which underpins the amendment is that licensing itself—proper licensing—provides protections for the people living in these HMOs. My noble friend Lady Lister asked for evidence, as noble Lords have done in many other amendments to the Bill, that this lowering of standards will indeed speed up the accommodation of asylum seekers in this position.
There are a number of detailed questions here. I look forward to the Minister’s answer, but it is fair to say that there is scepticism in the Committee that the course of action proposed by the Government is the right way to go.
My Lords, I acknowledge the gracious compliments paid by the noble Baroness, Lady Hamwee, to my noble friend Lady Scott, which I will pass on.
As the noble Baroness has explained, the amendment would prospectively revoke the Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023. Those regulations, which have not yet been made, would amend the definition of “house in multiple occupation” in England for the purposes of Part 2 of the Housing Act 2004. The effect of the regulations is that accommodation provided on behalf of the Home Office for destitute asylum seekers will not require an HMO licence from a local authority for a specified period. The exemption will apply to properties that begin to be used as asylum accommodation from the point when the regulations come into force up to 30 June 2024, and last for a two-year period.
It is the Government’s intention with these measures to ameliorate conditions for asylum seekers. The regulations will support the rapid provision of accommodation for asylum seekers in local areas. I emphasise the urgency of this important reform, which forms part of a suite of measures to accomplish wider asylum delivery plans.
Many contributions—I noted in particular that of the noble Baroness, Lady Lister of Burtersett—focused on the use of hotel accommodation for asylum seekers. There are over 56,000 asylum seekers currently living in contingency accommodation, mainly hotels. The reform will support the necessary steps being taken to accelerate moving asylum seekers out of hotel accommodation—which the Government accept is inappropriate, generally speaking, and furthermore is more costly—into more suitable and cost-effective accommodation.
I notice that in the statutory instrument there is no impact assessment. The Minister has just reiterated what the noble Baroness, Lady Scott, said in Grand Committee, that this would speed up the number of properties coming on to the market for asylum seekers. As there is no impact assessment, could he tell us how many a year will come on to the market for asylum seekers that would not have done if these regulations were not made?
It would be acceptable to me, but time and time again, the noble and learned Lord has reiterated what was said in Grand Committee. Surely, that is something he should have asked for in meetings before standing at the Dispatch Box and giving that assurance to the Committee.
My Lords, I repeat that I will endeavour to provide an answer to the noble Lord.
The use of hotels as being inappropriate was a matter raised again by the noble Baroness, Lady Lister of Burtersett, in relation to Operation Maximise, and that was a scheme to use hotel rooms to accommodate asylum seekers. It is in order to move away from the use of hotels and provide more suitable accommodation that the Government are advancing these measures.
Asylum accommodation and support contract providers have identified existing licensing requirements for HMO properties as a challenge to swiftly making such accommodation available, in particular where local authorities apply licensing conditions that exceed statutory requirements, detracting from the viability of the property. The introduction of this exemption would mean that national standards apply uniformly to all new asylum accommodation, thus removing barriers to acquiring the more suitable and cost-effective accommodation, of which I was speaking, for housing asylum seekers and assisting in that aim of accomplishing dispersal of asylum seekers so the country bears the burden more evenly.
There were questions from a number of your Lordships —from the noble Baroness, Lady Hamwee, in opening, from the noble Lord, Lord Scriven, and from the noble Lord, Lord Ponsonby, responding for the Opposition—about whether these measures were intended to create lower standards. That is not the case. The Home Office accommodation contracts with our service providers set out clear minimum standards for all asylum accommodation. This is used to ensure compliance with standards similar to those used in local authority licensing.
We have answers that the noble Baroness, Lady Scott, gave to us in writing after we had asked the questions. Of the eleven standards that questions were asked about, only one meets the requirements of the national HMO licensing conditions; 10 do not. Therefore, the standards are not similar to the HMO licensing. They are a dilution of standards in the HMO licensing system. Would the Minister not accept that is the case in light of the answers that the Home Office and DLUHC have already given to noble Lords?
“Similar” does not mean “the same”. I will endeavour to answer questions raised by the noble Lord, but I would doubt whether the answers I am able to give will satisfy him as much as the answers to his own questions which he has already given.
All dispersal accommodation is required to meet the room and space standards in the Housing Act 1985 or the Housing Act 2004 as appropriate. Properties are also required to have at least one bathroom and one kitchen per five occupants as well as meet the statutory space standards, and this will continue in HMO licence-exempt properties and will be checked on inspection. I will come to the inspection regime in due course.
All dispersal accommodation is also required to meet a range of other standards, for example for effective fire safety risk assessments to be carried out and acted upon, and for gas and electrical safety to be properly certified. The noble Lord, Lord Scriven, spoke eloquently about the genesis of such measures arising out of a tragic fire. I am able to advise the Committee that the Home Office is working with the national fire safety co-ordination centre in relation to fire safety provisions in such properties.
Compliance with these requirements will also be checked by the Home Office’s asylum support contract assurance team. All asylum seekers have access, 24 hours a day, seven days a week, to an advice, issue reporting and eligibility service provided for the Home Office by Migrant Help, where they can raise any concerns regarding accommodation or support services. They can also get information about how to obtain further support.
The noble Baroness, Lady Hamwee, and particularly the noble Lord, Lord German, raised the interaction of such properties with the provision of housing for homeless persons. The Government will do everything they can to mitigate the risk of homelessness, in support of the existing cross-government commitment to end rough sleeping within this Parliament and to fully enforce the Homelessness Reduction Act. To support this, while recognising the burden that local authorities are under, the Government will increase funding for local authorities to support asylum seekers and encourage councils to make properties available more quickly. To support local authorities this year, a one-off payment for each person accommodated on 1 April 2023 has increased from £250 to £750 per person. Councils will continue to receive £3,500 quarterly for each new dispersal bed made available thereafter during the financial year 2023-24. Payment will be made through the same grant process as used in 2022-23.
In addition, as part of a four-month pilot, to which we have had reference, councils will receive a further incentive payment of between £2,000 and £3,000 where a bed is made available within an expedited timeframe following identification. This almost doubles existing funding for those local authorities which take on new accommodation and do so quickly. The Home Office will also monitor any impact and will be conducting a full burdens assessment, working with the Local Government Association.
This brings me to the points raised by noble Lords on engagement with local authorities. I think it was the noble Baroness, Lady Hamwee, who particularly sought assurances about co-operation between central and local government on these matters. Home Office engagement with local authorities has increased significantly, and improved, since the introduction of an engagement strategy which is designed specifically to ensure that impacts on local services can be raised, discussed and mitigated through multi-agency forums.
The full dispersal team also currently meets every region at least once a month and some regions more regularly. These meetings are the key to driving delivery of regional dispersal plans. The Home Office engages regularly with local authority chief executive leads in a number of forums, including the asylum and resettlement council senior engagement group and the strategic oversight group. At these groups, HMO plans are being discussed alongside wider asylum and resettlement-related issues affecting councils across the UK. These are bodies within which the concerns raised in this debate by the noble Baroness, Lady Lister of Burtersett, and others can be raised.
The Home Office will also be arranging an open forum for local authorities to attend to provide local government colleagues with opportunities to discuss issues of concern with senior Home Office officials. Through its strategic oversight group, the Home Office is looking to set up a sub-group which will explore the issue of community cohesion with local authorities. This group would complement other work strands that are exploring related regional impacts.
On the subject of inspections, the Home Office is doubling the size of the current team in asylum support contract assurance to undertake additional inspections and other assurance work in response to the HMO licensing exemption. Inspections will be undertaken by housing health and safety rating scheme-qualified inspectors on all HMO properties that benefit from this exemption at least once in the two-year exemption period. This is in addition to the monthly inspections made by the accommodation providers themselves to ensure that the appropriate property standards are being maintained.
I thank the noble and learned Lord for giving way again. I asked this in Grand Committee and do so again today: the doubling is a doubling, but what will the actual full-time equivalent be and what will it mean in terms of the average number per local authority area in England?
Again, the noble Lord asks a question of some detail and I will, with his leave, respond in writing. I appreciate his point that doubling from one to two is not significant. However, the Committee has heard me speak of the breadth of support and inspection that will be given and the expertise of those carrying out the inspections. I am grateful to the noble Lord, Lord Scriven, for nodding his assent; he can expect to receive a letter from the department in due course.
These regulations are subject to the draft affirmative procedure, and the noble Baroness, Lady Hamwee, said as much in introducing the debate. They have been considered and approved by this House and await approval by the House of Commons. They are subject to sunsetting provisions, as stated. They are an appropriate response to the short-term challenges we face accommodating asylum seekers.
The Home Office has put additional measures in place of a robust nature to ensure that housing quality is maintained to a national standard. In addition to the usual assurances via the terms of contracts entered into, an enlarged team of appropriately qualified inspectors will inspect each eligible property at least once during the exemption period, as I said to the noble Lord a moment ago.
I reassure the Committee once again that these regulations and the actions of the Home Office in drawing them up and moving this policy forward are informed by our consciousness of the terrible past tragedies which have overtaken people living in accommodation of this sort. We are all too well aware of the incidents the noble Lord, Lord Scriven, drew to the attention of the Committee, and to which the noble Baroness, Lady Hamwee, adverted in passing at the outset of her remarks. I offer to the Committee an assurance that we are aware of this and that the inspection regime we set up will, as much as is humanly possible, look to prevent such things happening again.
I beg the noble Lord’s pardon; I meant to answer that question and sought specific information from the Bill team on it. The regulations apply only to England and not to Wales, Northern Ireland or Scotland.
Finally, I invite the noble Baroness, Lady Hamwee, to withdraw her amendment.
My Lords, I am not going to say very much. Many Members are waiting to consider the large number of amendments we are scheduled to get through tonight—whether we will or not, we will see.
I thank the noble and learned Lord for his responses to the shedload of questions which came from this side. I was surprised that he started by saying that the regulations are intended to ameliorate conditions for asylum seekers, because it seems to everyone involved that it is about numbers and not better conditions. He has given assurances about engagement with local authorities, but it was the Local Government Association which particularly asked to be reassured about engagement, so this remains a live issue. He said that the lump sum of up to, I think, £3,500 would be paid in the circumstances he mentioned. I had understood from briefing that that was only for the pilot period of four months. Could he let me know after today if that is correct?
Finally, the noble and learned Lord mentioned Migrant Help. There have been a lot of tales over the last few months of people in hotels who have asked for some help from the contract providers who run the hotels or from other staff, and been told, “Oh, go and ask Migrant Help”. I do not think that it is quite the smooth process that was just suggested. However, I beg leave to withdraw the amendment.
Amendment 58 withdrawn.
Clause 9: Other consequential amendments relating to removal
Amendment 58A not moved.
Clause 9 agreed.
Clause 10: Powers of detention
58B: Clause 10, page 14, line 5, leave out “and (3)” and insert “, (3) and (3A)”
My Lords, as Amendments 61, 62 and 66 are consequential to Amendment 58B, I will speak to all three at the same time as moving it; they all sit together.
Currently, pursuant to Schedule 2 to the Immigration Act 1971, the Secretary of State for Home Affairs may detain people for immigration purposes only in places set out by her in a direction. Detention in places not specified by her in a direction will be unlawful. The Bill amends that direction to include
“any place that the Secretary of State considers appropriate”.
Following the publication of the Bill, the Immigration Minister in the other place outlined that the expansion of the asylum and migrant estate will include military barracks and that the Home Office will
“continue to explore the possibility of accommodating migrants in vessels”.—[Official Report, Commons, 29/3/23; col. 1018.]
More recently, the Government announced plans to house 500 asylum seekers on a barge in Portland, off the coast of Dorset. It remains unclear whether these settings will also be used as detention facilities as the provisions of the Bill seek to give the Home Secretary the power to detain individuals in such places, despite the risks posed by facilities such as Manston, which I will come to later. Some of the further mooted facilities present additional risks of their own, with military bases potentially triggering pre-existing vulnerabilities in people who have likely fled war and/or persecution. Will the Minister explain the reasons for granting the Secretary of State the power to detain people in “any place” that she “considers appropriate”?
If the intention is to allow detention in places not currently set out in the Immigration (Places of Detention) Direction 2021, will the Minister give details of where these places will be? For example, will the detention centres include military sites, such as Scampton in Lincolnshire, Wethersfield in Essex and Bexhill in East Sussex, or barges, such as the “Bibby Stockholm”, due to be moored in Portland? With the announcement this week by the PM of more barges to house asylum seekers, can the Minister advise on the cost of these, given that the aim has been to reduce money spent on accommodation, especially if some of this will be used for detention purposes?
Current Home Office plans suggest that these facilities are being considered for use as asylum accommodation only rather than detention. Can the Minister confirm whether the Government in fact plan to use them in whole, or part, as detention sites? If the intention is to allow detention in places not currently set out in the immigration direction of 2021, will the Minister explain how the Secretary of State will ensure that the standards set out in the Detention Centre Rules 2001 and the Short-term Holding Facility Rules 2018 are met in relation to the treatment of detained persons, including the safeguarding of vulnerable people known to be at particular risk of suffering harm in detention, such as victims of torture and trafficking, pregnant women and those with serious mental health conditions? What legal framework will exist to ensure these standards in such places? Are we to expect regulations and, if so, will we see them in draft before the Bill is completed? Has the Home Office carried out a full risk assessment linked to the proposed expansion of the detention estate and will it be published? How will the Minister seek to avoid scenes such as those at Manston, described by the Chief Inspector of Borders and Immigration as “wretched”, if there is no extra detention capacity when the Bill passes?
It is interesting to note that, just this week, we have had the publication of the report of the unannounced inspection of Manston by His Majesty’s Chief Inspector of Prisons. I am sure Ministers have seen his comments. They are clearly concerning, and I shall briefly mention four priority areas: detention in the facilities was too long; the governance of adult and child safeguarding was poor; there was no accurate data on the use of force or separation from the general population or of incidents of violence and non-compliance; and professional interpretation was not always used consistently. There is a danger that Manston will not be able to cope any better than it was coping when the disturbances took place there more than 12 months ago. The response to the report from the Chief Inspector of Prisons is therefore important, to show that the Home Office will ensure safeguarding and care for individuals, which is not currently present.
According to Charlie Taylor’s report, there is no oversight of leadership and safeguarding, or of the use of force. These are incredibly important issues in places of detention. Care planning for vulnerable detainees and children with disabilities was poor and did not demonstrate individual planning, risk assessment or meaningful welfare checks.
Given the responses that we see about the current detention regime in this very recent report from His Majesty’s Chief Inspector of Prisons, how does the Minister expect to provide new and extra accommodation, given the challenges the Government are already facing, across the country, from many Conservative MPs, for example, who do not want these in their backyards—not in the run-up to an election, I understand? Can the Minister tell us whether barges are really suitable places for the detention of families and children?
Amendment 62 would place the Secretary of State under a duty to consult local residents before authorising the use of any new facility within these categories. This is critical for community cohesion and well-being. Removing someone’s liberty is a deeply serious issue and we are extremely concerned about the consequences of this clause for the most vulnerable in our society, particularly children, torture victims, pregnant women and victims of modern slavery. It seems to us that the Home Secretary is moving far beyond the sorts of powers necessary to detain people in an appropriate manner, and this manner at the moment gives us minimal recourse to scrutiny.
The lives, liberty and well-being of fellow human beings should not be put on the line as collateral damage for a policy which most of us know will never achieve its stated aims but is being used for political appeasement. For the reasons I have outlined, I also oppose Clause 10 standing part of the Bill. I beg to move Amendment 58B.
My Lords, I shall speak to Amendments 59B, 61A, 64B, 66A and 79C in my name.
Amendments 61A and 66A would ensure that, if children are to be detained or held in temporary accommodation before they are placed with a local authority, there are basic standards in the Bill to ensure that the type of accommodation is suitable, along with the services and standards that are needed to ensure that the best interests and the welfare of the child are paramount, and that the provisions are exactly the same as in the Children Act 1989.
Amendments 59B and 64B would ensure that the regulations about detention or the holding accommodation of children are made not by the Home Secretary but by the Secretary of State for Education, whose department has a far better understanding of the Children Act and what it means to put the interest of the child first. Because of this I have also tabled Amendment 79C, which would ensure that until such time as a young person is allocated to a local authority’s care, the department that understands fully the details of the Children Act, the Secretary of State for Education’s, is responsible for the welfare of children in the holding accommodation.
I will explain the rationale for these amendments. It is clear from what has been happening to young children seeking asylum who have been held in hotels that the Home Office has no idea what to do to put the interest or welfare of the child first. The Home Office seems, at best, not to have a detailed understanding of the provisions of the Children Act 1989. At worst, it ignores certain provisions of the Act and has no regard for putting the interests and welfare of the child first and central to its policy of temporarily holding children. What we have seen happening to some of the young people housed in these Home Office temporary hotels is nothing less than a national scandal and a disgrace.
Since summer 2020, unaccompanied children seeking asylum on arrival in England have had their rights systematically breached by the Home Office and have been denied the full protections they should have been afforded under the Children Act 1989. Their needs have not been assessed and they have been unlawfully denied the care of local authorities for unlimited periods of time. Instead, they have been placed in Home Office hotels, many of which are unsuitable, are out of reach of the standards laid down in Section 22 of the Children Act and house vulnerable children alongside adults. Many children have gone missing. I eventually got the Minister to answer from the Dispatch Box that 200 children were still missing. Some of these have been well documented; reports from Greater Manchester Police have indicated that children who have been scooped up have been found in Greater Manchester, used by drug gangs and trafficked for sex. Yet in the Home Office Answers to Written and Oral Questions in this House, it is in total denial about what is happening and refuses to accept that it has evidence from police, such as Greater Manchester Police, about the plight of some of these vulnerable children.
That is why these amendments have to be accepted. To be blunt, if they are not, these vulnerable children will still go missing and will not have the standards that every child in this country should have; the needs of the child will not be paramount.
Amendment 79C would ensure that the Secretary of State for Education is responsible for the temporary care of a child from the moment they arrive here and would be responsible for them until they are placed with a local authority. As I indicated earlier, this is far more desirable—not perfect, but more desirable—than the Home Office having responsibility. The Department for Education has years of experience in dealing with these vulnerable children through close-working liaison with local authorities and issuing detailed guidance for unaccompanied children seeking asylum. This amendment would help to ensure that the interests of the child are put first the moment they step into the country.
Amendments 59B and 64B are in the same vein. The Department for Education fully understands the law and nuances of the Children Act, and the rights and obligations to children to ensure that their interests and welfare are put first. It is therefore appropriate that the Secretary of State for Education, and not the Home Office, issues such regulations under Clause 10.
Finally, Amendments 61A and 66A would ensure that unaccompanied children seeking asylum would not be dumped in unsuitable accommodation, as we are seeing at present, but would have afforded to them the same standards and provisions that are in Section 22 of the Children Act 1989. Section 22(3) sets out the general duties of the local authority looking after a child to safeguard and promote their welfare. This duty underpins all activity by the local authority in relation to looked-after children and has become known as “corporate parenting”. In simple terms, corporate parenting means the collective responsibility of the council, elected members, employees and partner agencies for providing the best possible care and safeguarding for the children who are looked after by the council.
My amendments would mean that those same provisions would apply to children who are not in local authority care but in temporary accommodation that the Home Office has given—that the corporate parenting responsibility would be for the Secretary of State for Education. That includes an assessment of the suitability of the accommodation required for each individual child. Amendments 61A and 66A would confer the same responsibilities and duties on to the Secretary of State for Education the moment the child enters the country, until such time as they are placed with a local authority.
The welfare and care of unaccompanied children seeking asylum is paramount. They should have the full protections of the Children Act 1989 from the moment they reach our shores. These amendments will ensure that the rights of the child are paramount if the Home Office insists on detaining a child or putting them into temporary accommodation before they are in the care of a local authority. I believe it is paramount that this is in the Bill. The rights of the child and the Children Act 1989 are absolutely key to protect vulnerable children who are seeking asylum. That is why I tabled these amendments.
My Lords, I have only two questions to put to the Minister. I reinforce the remarks of the noble Lords, Lord Scriven and Lord German.
First, I ask the Minister directly about the issue of capacity. I also want to ask him about the role of the Independent Family Returns Panel. Dr Peter Walsh says that the current detention estate has capacity for about 2,500 individuals, yet we all know that last year 45,000 people arrived on our shores. In addition, there are 160,000 asylum seekers still awaiting decisions. If we take those numbers together, how do they square with the capacity that is planned for the estate? I was also struck by the Taskforce on Victims of Trafficking in Immigration Detention saying:
“We expect that tens of thousands of individuals will be indefinitely detained in immigration detention facilities, with the current already overstretched detention estate being unable to hold anywhere near the numbers anticipated”.
My second question is brief. I am concerned about the disapplication of the duty currently placed on the Secretary of State to consult with the Independent Family Returns Panel in every family returns case, particularly where the family involves children. Has the Minister seen the statement from the UK Committee for UNICEF, which has described this decision for disapplication as “regrettable”? Is that something he might give further thought to?
My Lords, I want to make two quite separate points. I pick up on what the noble Lord just said; have the Government looked at what is really happening on the ground, the numbers of people currently waiting to be removed—that is a very large number—and the numbers coming in? How on earth are they going to get people away? Where they are going and what is going to happen was set out in much greater detail on an earlier amendment.
What worries me as I have sat listening, today in particular but really throughout the debates on the Bill, is that I do not think the Government have yet put their mind to the problems of numbers and how on earth they are going to get rid of these people, if I may put it rather bluntly.
The second point, which is so much more important, relates to what the noble Lord, Lord Scriven, just said, and I not only support him but admire him enormously for saying it. As I said on another Bill some time ago, I remind the Government that the Home Secretary is not a corporate parent, nor indeed at the moment is the Secretary of State for Education. The concept of the corporate parent is to be found in the Children Act 1989, as a local authority. Currently, the Government are expecting to deal with sometimes quite young children. I think they are concentrating on the 16 and 17-year-olds who are coming through and are not looking at a minority—but probably a relatively substantial minority—of children who are much younger. They have to be looked after. I do not want to repeat what the noble Lord, Lord Scriven, said, but it is crucial that they be looked after. The only corporate parent who can care for them is in fact the local authority where the children are. It is about time the Government started to look at not just the best interests of the children, which is so obvious—it worries me that I keep having to talk about that—but the points that the noble Lord, Lord Scriven, made, which really should strike home.
My Lords, I support Amendments 61 and 62 in the name of the noble Lord, Lord German, and welcome the opportunity to discuss what rules and regulations His Majesty’s Government will adhere to when selecting a site for the purposes of detention. The right reverend Prelate the Bishop of Durham had intended to speak but is unable to be here for this group of amendments; I am glad to be here in his place. I am grateful to Medical Justice for sharing how existing legislation governs both the nature and operation of detention centres. As it is a detailed policy area, I will focus my time on the context for these amendments while also posing questions to the Minister.
First, as the right reverend Prelate the Bishop of Durham explained at Second Reading, the Bill before us changes the nature and scope of detention considerably. It moves detention away from an administrative process to facilitate someone’s removal to a punitive system of incarceration intended thereby to deter asylum seekers from travelling to the United Kingdom. Deterrence, as we have seen, is a key theme stressed by the Government, albeit no evidence or impact assessment has been adduced in its favour. This shift towards incarceration signals a major transition in policy, but in embarking on this shift in the purpose of detention, the Government leave us with a lack of detail on what rules and guidance will be adhered to when the Secretary of State is selecting a place of detention.
However, the Minister replied on 26 May to the right reverend Prelate the Bishop of Durham’s Written Question that individuals can be detained for immigration purposes only
“in places that are listed in the Immigration (Places of Detention) Direction 2021”.
I know that the right reverend Prelate was grateful for that answer. Furthermore, the Minister stated:
“All Immigration Removal Centres … must operate in compliance with the Detention Centre Rules 2001, this includes any additional sites that are opened as IRCs to increase detention capacity”.
Can the Minister therefore say whether it will remain unlawful for the Government to authorise places of detention outside those specified in the direction?
Secondly, will the Minister explain how the power granted by Clause 10 to the Secretary of State to detain people
“in any place that the Secretary of State considers appropriate”
marries up with the Immigration (Places of Detention) Direction 2021? The Minister may understand my concern that the power to deprive a person of their liberty, and how and where someone is detained, should be constrained by law and not the discretion of a Minister of the Crown, or anyone else.
The Home Office has announced plans to accommodate asylum seekers on military sites such as Scampton in Lincolnshire, Wethersfield in Essex and Bexhill in East Sussex, or on barges such as the “Bibby Stockholm”, already mentioned, due to be moored in Dorset. So I further ask the Minister to confirm that these sites will not be used for the detention of people deemed inadmissible on arrival but for those awaiting a decision on their asylum application.
The Government will understand the potential impact of wide discretionary powers to detain people anywhere, without adherence to particular standards, given the events at Manston in 2022. With a maximum capacity of 1,600, Manston became overcrowded, with the number of people detained there nearing 4,000 towards the end of 2022, and there are concerns that the conditions are likely to have amounted to inhuman and degrading treatment. We cannot allow another humanitarian crisis such as this to occur.
I appreciate that the Minister may not be able to answer all my questions tonight. If that is the case, I ask him kindly to write to me in advance of Report and to send a copy to the right reverend Prelate the Bishop of Durham.
It is the concern of several of us that the proposed new regime of detention facilitated by the Bill does not distinguish whether you are a child, a victim of trafficking or a pregnant woman, and that you will be subject to initial detention of not less than 28 days. Due to the ouster clause, there are also no means for anyone to challenge the lawfulness of the Government’s action, putting it beyond legal remedy. It is therefore of the utmost importance that we understand the legal framework that will be put in place to ensure that detention and safeguarding standards are established, and that detention sites are designated by law, not by expedient, as suitable.
My Lords, Amendment 69 is in my name. I am very grateful to those who have co-signed it: the noble Lord, Lord Carlile, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman.
The amendment provides for a general standard or series of standards to be applied—to some extent, picking up some of the more specific points that have been raised by other Members of the Committee. The amendment says:
“The conditions under which persons are detained pursuant to this section must comply with United Nations High Commissioner for Refugees Detention Guidelines”.
This becomes particularly important in the context of this proposed legislation because there is no time limit currently provided for detention. Indeed, earlier today, the Minister, the noble and learned Lord, Lord Bellamy, made great play of the fact that currently Rwanda is the only country in Schedule 1 which has actually signed up to admit people and therefore the rest of the people are not going to be accommodated by way of a removal.
People who are not suitable to go to Rwanda, which, according to the FCDO’s travel guidelines, would certainly include LGBT people, would be subject to indefinite detention until some other arrangement—if and when, if ever—with a truly safe place for that group was arrived at.
The UNHCR’s refugee Detention Guidelines currently set out, in guideline 8, some 18 minimum conditions of detention. They range from general propositions on treating asylum seekers with dignity to conditions around medical treatment; the ability of persons resident in detention to make contact; physical exercise; for children, education and vocational training; standards of food; and so forth. We certainly know that, on the ground at the moment, those standards are not being adhered to in the accommodation currently being occupied by those who seek asylum.
The time has come—particularly in view of the possibility of detention without any limit whatever; although that issue is going to be dealt with in a later group, I might add that it is in itself contrary to guideline 6 of the UNHCR’s refugee Detention Guidelines —when the Government must commit themselves to the minimum recognised standards that apply to asylum seekers. As others have said, we are not just dealing with numbers—number 1,231, for example. Each of these cases is a human being deserving of dignity and proper treatment.
Those are the minimum standards set down in guideline 8. I would like to know whether it is the Government’s proposal that they should adhere to these minimum standards.
My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.
Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.
I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:
“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.
This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.
Is that not precisely what the Vienna convention on the interpretation of treaties provides for: that each nation interprets it? States have to relate to and deal with the body to which the noble Baroness refers, but that is separate to the legal question of what the convention actually means. These are two distinct legal questions, are they not?
Well done. Article 35 continues:
“In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information”.
The bottom line is that the UNHCR is not just any other body, think tank, NGO or pressure group. It is a specific organ of the United Nations that was commissioned right at the beginning, when this convention was drafted, to have a special role in its supervision. That is why I support the noble and learned Lord, Lord Etherton, in suggesting as a bare minimum that our detention provisions ought to comply with guidelines—they are only guidelines—set out by the UNHCR. We can have these lovely little Oxford Union interventions from Members opposite, but the bottom line is that if we do not comply—
I am sorry, but this is not an Oxford Union intervention. There is a clear distinction between an obligation to co-operate with a body in the implementation of the convention and that body having a role in the interpretation of the convention. They are different legal concepts and, with great respect, the noble Baroness knows that; it is quite wrong to elide one with the other. “Interpretation” does not appear in Article 35 and is deliberately excluded.
I am very grateful, obviously, to the noble Lord for his intervention. I repeat:
“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.
This was the body given special status in the drafting of the very precious convention that was drafted with key instigation by the wartime generation in this country for reasons that I need not repeat.
If we do not comply with guidance from the UNHCR in relation to the detention of asylum seekers and refugees, who will? For that reason alone, I am very glad to support the noble and learned Lord, Lord Etherton.
My Lords, Amendment 70A in this group is in my name and also signed by my noble friend Lord German. It is focused on the protection of unaccompanied migrant children and child victims of modern slavery. Picking up on the theme from the noble Baroness, Lady Chakrabarti, I want to make a brief reference to the United Nations Convention on the Rights of the Child. Article 22 on refugee children says if a child is seeking refuge or has refugee status Governments must provide them with appropriate protection and assistance to help them enjoy all the rights in the convention.
There is consistent medical evidence that immigration detention is damaging the mental health of those who are detained. This Bill now forces children to be detained beyond the very short period which has been about acceptable before, although it was good that during the coalition years we stopped children being held in detention.
People seeking asylum have a very high prevalence of pre-existing vulnerabilities, including serious mental health conditions and histories of being trafficked, tortured and suffering sexual and gender-based violence. This puts them at particular risk of being further harmed in their time in detention.
The health implications of this Bill to detain people anyway without adherence to particular standards was highlighted by the events at Manston. As the right reverend Prelate the Bishop of Southwark has mentioned, it had a capacity of 1,600 but last autumn it was overcrowded, with the number of people detained nearing 4,000 following a decision by the Home Secretary not to send people on to hotels. People were beyond the 24-hour time limit without clear lawful basis for detention in holding rooms or five days in holding facilities.
My noble friend Lord German referred to the recent reinspection of Manston, but it is worthy of note that Charlie Taylor said there seemed to be some improvements while it was “fairly empty” but that he
“was not assured that if numbers increase … the site will be able to cope much better”
than last autumn, which is why I wish to persevere with my amendment. Conditions at Manston deteriorated very quickly and are likely to have amounted to inhuman and degrading treatment in violation of Article 3 of the ECHR, including overcrowded living conditions, unclean and unhygienic facilities, inadequate food provisions—some days without sufficient food or drinking water—lack of adequate medical care and spread of infectious diseases.
This was not new. Charlie Taylor’s inspection last year made a number of points which I will not go through now, except to say that the care pathways lacked co-ordination, clinical leadership to govern the standard and quality of care was not there and facilities for the management of detainees with Covid or other infectious diseases were poor. There are still reports from doctors that healthcare is patchy. I have talked recently to some directors of public health and GPs in areas that have received asylum seekers. NHS access for those who really need it is very slow and piecemeal, and often there is still no clinical oversight and no real clear strategic co-ordination or pathway, meaning that access to healthcare is delayed.
This is important for children because the position for the healthcare and well-being of children is even more worrying. Medical Justice assessed children detained at Yarl’s Wood and identified psychological harm caused and exacerbated by detention. Symptoms included bedwetting and loss of bowel control, heightened anxiety, food refusal, withdrawal, disinterest and persistent crying. The children expressed suicidal ideation, and physical health problems included fevers, vomiting, abdominal pains, diarrhoea, musculoskeletal pain, coughing up blood and injuries because of violence. They also witnessed their families being subjected to racist abuse during dawn raids and other people being subjected to violence in detention. Children were also reported to have been physically harmed because of violence in detention, and a number of royal colleges of health have described the detention of children as unacceptable, saying that it should cease without delay.
That is why initial health assessments for children must be carried out by a qualified doctor in a safe environment, with an interpreter. IHAs should not be carried out by care assistants working for detention centres and their contractors. Too much is at stake. Does the Minister believe, as he has repeatedly said in Committee, that deterrence should take precedence over rights? What is happening to these children in detention should not be tolerated. What healthcare and well-being standards will be in place for those in detention centres, especially minors, whether with their families or unaccompanied? The amendment sets out the legal framework by which it is perfectly possible to create safe standards to ensure that these children are protected properly. If the Minister cannot provide details, will he accept my amendment?
My Lords, I was going to ask this question in the next group, but it is more appropriate to ask it here. It was raised by Doctors Without Borders in its damning briefing: what specific care will be provided for children with pre-existing or emergent health needs?
Also, following on from my noble friend Lady Chakrabarti, I have been in correspondence with the UNHCR about the different interpretations of the UN convention and the refugee convention that came up when I asked on our first day in Committee why we should accept the Government’s interpretation of the refugee convention over that of the body which has global responsibility for it. The Minister was rather dismissive of the UNHCR, which, in response, highlights that its position on the Illegal Migration Bill—one diametrically opposed to the Government’s—is that it will go against the obligations under the refugee convention. The UNHCR’s institutional position has been conveyed to the Government in the exercise of its responsibilities under Article 35. It does not accept that this is a legitimate interpretation of the refugee convention.
My Lords, I will speak briefly on Amendment 69 in the name of the noble and learned Lord, Lord Etherton, and others. My intervention is prompted by a meeting I had earlier today with the disabled Greens group, specifically on the question of meeting the needs of disabled asylum seekers and refugees. That caused me to look up the details of the UNHCR Detention Guidelines, specifically point 9.5, which says that states may be required to make reasonable accommodations to ensure that they meet the specific needs of disabled asylum seekers. It says:
“As a general rule, asylum-seekers with long-term physical, mental, intellectual and sensory impairments should not be detained”,
and that accommodation needs to be accessible.
The disabled Greens raised with me their particular concern about the barges, about which the Government seem very enthusiastic and to which they have been paying a great deal of attention. It is difficult to see how those barges could possibly meet the accommodation requirements of disabled asylum seekers.
A number of noble Lords referred to the historic situation at Manston, but we have seen the Chief Inspector of Prisons expressing great concern about what is happening there right at this moment. The focus has very much been on children but, if we are not able to identify and assist children appropriately, I really wonder whether we are also able to identify and assist refugees with disabilities, who may have specific needs. Can the Minister say how the Government will ensure that they meet the needs of asylum seekers with disabilities?
Finally, without in any way daring to intervene in a discussion between two lawyers on a fine technical point, I just note that Article 35 of the convention, referred to by the noble Baroness, Lady Chakrabarti, says that:
“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.
The relationship does not look much like co-operation at the moment.
My Lords, I am afraid I rise again to make a point that really should not have to be made. I made the point on a previous group that we are a dualist state where international law is not part of domestic law unless and until it is so incorporated by this Parliament. Later, perhaps in a question, the noble Baroness, Lady Chakrabarti, rather poured scorn and said that this was some sort of technical dualist point. It is not a technical dualist point; it is a fundamental part of our constitution.
Another fundamental part of our constitution is that, when we sign up to international treaties such as the Vienna convention, we have to look at what they actually say. This is not an Oxford Union debating point for two reasons: first, it is far more important than that; and secondly, I have never been a member of the Oxford Union. Article 31 of the Vienna convention, on the interpretation of treaties, says:
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.
Each state therefore has to interpret its obligations under a treaty.
Some treaties, such as the European Convention on Human Rights, have a court attached to them. If you sign that treaty and sign up to the court, you are obliged to abide by the rulings of the court, in so far as those rulings emanate from the treaty. For example, Article 46.1 of the European Convention on Human Rights provides that the UK has to abide by any judgment given against the UK by that court. That is what we signed up to in the treaty. The refugee convention does not have a court attached to it. Therefore, this country, like every other, has to interpret the treaty bona fide—in good faith.
What, then, is the position of the UNHCR? It is exactly as the noble Baroness, Lady Chakrabarti, read out from the treaty, but it is not the gloss that she put on it. The word “interpret”, which she used in her speech, does not appear in the treaty. That is not an accident, because the states were not going to give the UNHCR the power—[Interruption.] I will give way if the noble Baroness, Lady Chakrabarti, wants to make an intervention; otherwise, I cannot hear her.
If the noble Baroness, Lady Chakrabarti, does not want to take that opportunity, I would quite like to. The noble Lord makes the point that Article 35 of the refugee convention does not have the term “interpretation”, but it does say, as the noble Baroness quoted:
“The Contracting States undertake to co-operate with the Office of the … High Commissioner … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.”
I suggest that that is not a million miles from assisting in the common interpretation of the convention.
I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.
I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.
The noble Lord is a good lawyer and I am not, and I know that time is pressing on. However, it says more than just that we should co-operate with the UNHCR. It asks contracting states to facilitate the UNHCR’s
“duty of supervising the application of the provisions of this Convention”—
I emphasise “supervising”. I do not know how that terminology was arrived at but it is saying more than that the UK must co-operate with the UNHCR. The UNHCR has a sort of supervisory duty, and I think that is more than what the noble Lord is saying.
I am not focusing on the supervisory duty. For these purposes it does not matter whether we have a duty to co-operate once a month or once a day, or to get in touch with it every half an hour. That is just on the scale of the nature of the co-operation duty. My point, and I submit that it is a fundamental one, is that there is a difference in essence—a conceptual distinction—between a co-operation duty with the UNHCR as to whatever the treaty means and agreeing that whatever the UNHCR says the treaty means is what it means. It is not an accident that interpretation was excluded from Article 35. Having made that point about five times, I will sit down.
Perhaps I could just add to all of this. I am sorry to do so; it is a bit unseemly for the lawyers to start arguing among themselves but I think I ought to record that I do not agree with the proposition of the noble Lord, Lord Wolfson, that the effect of Article 31 of the Vienna convention means that this country or any country can give to such a refugee convention any meaning it wishes to. It has to apply, under Article 31 of the Vienna convention, the wording of the refugee convention, bearing its ordinary meaning in the context of what it proposes.
This is a sideline. The Committee needs to concentrate on what the role of the UNHCR is. I think that it is perfectly obvious to virtually everybody that it has a special supervisory role under the refugee convention, as interpreted in accordance with the Vienna convention, in the application and the practical application of the refugee convention. What I was talking about in my amendment, supported by the noble Baroness, Lady Chakrabarti, was giving due weight to such a body. There is no other body that has that role. This body does, and it has been given by the United Nations.
My Lords, I am slightly nervous to stand up here. On a serious point, I want to say a few brief words in support of the amendments in this group, in particular Amendment 58B, in the name of the noble Lord, Lord German, Amendment 60, in the name of the noble Lord, Lord Scriven, and Amendment 69, in the names of the noble Lord, Lord Etherton, my noble friend Lady Chakrabarti and others.
In the interests of being brief, I will try to cut through to what I think is the fundamental issue. This group is about standards in detention. The reason this raises such concern, which I think the Minister should address, is that new subsection (2I), as inserted by Clause 10, as has been mentioned by others, says:
“A person (of any age) detained under sub-paragraph (2C) may be detained in any place that the Secretary of State considers appropriate”.
That is a huge power to give to the Secretary of State: to allow the detention of people arriving since 7 March, of any age, in any place. It is perfectly legitimate, and summarises all the amendments and all of the comments —I will not go through them all, and if I have got this wrong then people can intervene and I will apologise—for noble Lords to ask the Minister what that actually means in practice.
I thought that the remarks of the right reverend Prelate the Bishop of Southwark, on behalf of the right reverend Prelate the Bishop of Durham, cut to the chase. If that is the situation, how are those standards going to be maintained? What actually are those standards? Are the standards the same in a barge or in a military camp? These are the sorts of details that the Committee would wish to hear from the Minister. What are the standards, given that it can be any age and in any place? What difference will there be between arrangements for unaccompanied children, families and others? This is particularly important because the power in new subsection (2C) is not actually for people who have been definitely determined as being people we would wish to remove; it is that the immigration officer “suspects”. We are talking about the detention of individuals, maybe children, who we suspect.
That leads us into the next group. However, if we are talking about standards, this becomes particularly relevant. We are talking about people who might actually be regarded as legitimate and eligible asylum seekers, even under the criteria of this Bill.
In order to be brief, I think noble Lords are seeking an answer to the question posed by new subsection (2I). A significant extension of power to the Secretary of State to designate any place for somebody of any age demands that the Minister be very clear about what the standards will be in each of those places, and who will monitor them to ensure that those standards are kept to.
My Lords, as we have heard, these amendments bring us on to the issue of detention. The amendments in this group look at the standards of detention accommodation and seek to impose certain minimum standards in respect of accommodation and the treatment of detained individuals.
As I have repeatedly made clear, we need a new, radical approach if we are successfully to tackle the people smugglers and put an end to the dangerous, illegal and unnecessary small-boat crossings of the channel. The scheme provided for in the Bill needs to be unambiguously clear that if you enter the UK illegally you will be liable to detention and swiftly returned to your home country or sent to a safe third country. I want to make clear that the welfare of those who are detained is of the utmost importance. We will detain families and children, including unaccompanied children, only when it is necessary to do so and in appropriate accommodation with appropriate healthcare provision.
Amendments 61, 61A, 62, 66A and 69, tabled by the noble Lords, Lord German and Lord Scriven, and the noble and learned Lord, Lord Etherton, deal with the issue of accommodation standards and limiting the place of detention. I assure noble Lords that persons detained under the powers conferred by the Bill will be detained in age-appropriate accommodation that meets appropriate standards.
We detain persons for immigration purposes only in places that are listed in the Immigration (Places of Detention) Direction 2021 in accordance with the long-standing provisions of the Immigration Act 1971, at paragraph 18 of Schedule 2. In answer to the point raised by the right reverend Prelate the Bishop of Southwark, following Royal Assent we will update that direction in line with the new detention powers. Moreover, we already have robust statutory oversight of immigration detention, including inspection by the prisons inspectorate and independent monitoring boards at every detention facility, and effective safeguards within the detention process that, I submit, are sufficient.
My noble friend Lord Wolfson made some powerful points about the application of the international instruments to the question of detention standards, and clearly made the point that the UNHCR was expressly not given the right to issue determinative interpretations of the convention. It is up to states to interpret its terms in good faith, as we are doing.
The noble Lord, Lord Scriven, also has Amendments 59B, 64B and 79C in this group, which seek to transfer certain powers in relation to the detention and accommodation of unaccompanied children from the Home Secretary to the Secretary of State for Education. To be clear, the noble Lord referred to the temporary housing of unaccompanied children in Home Office-provided accommodation prior to their transfer to the care of a local authority. Such accommodation is not detained accommodation and is therefore not caught by the provisions of these clauses. I assure the noble Lord and the noble and learned Baroness, Lady Butler-Sloss, that we will return to this issue when we reach Clause 15.
The immigration functions provided for in the Bill are properly a matter for the Home Office. As noble Lords would expect, we regularly consult and work with the Department for Education on matters impacting on children, and that will continue to be the case in respect of the powers conferred by the Bill as they impact on unaccompanied children. As I have said, these are matters that properly fall within the purview of the Home Secretary and, as such, the functions to which these amendments relate should be exercised by her.
In relation to Amendment 70A which is specifically on the health and well-being of detained individuals, I can assure the noble Baroness, Lady Brinton, that we will work closely with the Department for Education to ensure that there are proper provisions for children in detention, and we will build on our current detention facilities to ensure that they are appropriate and provide safe and secure accommodation for children. The statutory guidance referenced in the noble Baroness’s amendment would not be applicable where someone is detained, but we will ensure that all relevant policies that relate to detention will continue to apply.
All persons entering detention are medically screened on arrival and have access to round the clock healthcare. This will continue to be the case. The existing adults at risk in immigration detention policy will be updated in line with the Bill and will continue to act as a safeguard for vulnerable persons in detention.
The noble Lord, Lord German, and the noble and learned Baroness, Lady Butler-Sloss, asked about our plans to increase detention capacity. We are increasing our detention capacity to ensure we have enough detention space, and we already have plans in place to build two new immigration removal centres. These include developing a new immigration removal centre in Oxfordshire on the former site of Campsfield House and a new immigration removal centre at Gosport in Hampshire on the former site of Haslar.
I can imagine the noble Lord’s response if we did not expand detention centres. The point is that, as a matter of government planning, we need to have sufficient capacity to ensure that we can detain and swiftly remove those who enter the country illegally, in particular those embarking on dangerous journeys across the channel.
Change will not happen overnight, but we are committed to making this legislation work. We are working to find other solutions to scale up our detention capacity too. The first step is to change the law, which is why we are focusing on getting this Bill through Parliament.
The noble and learned Lord, Lord Etherton, raised a related point, suggesting that large numbers would need to be detained in the absence of returns agreements. I remind him that in addition to our partnership with Rwanda we have returns agreements with 16 countries and that, as I have indicated, a returns agreement is not a prerequisite to our ability to remove people. I hope I have been able to reassure noble Lords about our commitment to maintain appropriate standards of detention accommodation and to provide appropriate care for those held in detention under the powers conferred by the Bill. On that basis, I hope that the noble Lord, Lord German, will be content to withdraw his Amendment 58B.
Amendment 79C intends to ensure that the Secretary of State for Education has responsibility for unaccompanied children as soon as they arrive in the UK. I suggest that the amendment does not in fact have this effect. It places no duty on the Secretary of State for Education to have any responsibility for arriving children. It would give the Department for Education the power to provide accommodation but not a duty to do so. At this stage the children are already in the Home Office system and the Home Office has pre-existing duties under Section 55 of the Borders, Citizenship and Immigration Act 2009 towards those children. The Home Office also runs existing relevant mechanisms such as the national transfer scheme. It is a matter for the Government as to which department should operate these powers.
This amendment could create a great deal of legal uncertainty, which is not in the best interests of children. For example, where children were not accommodated by a local authority on arrival, the Home Secretary could not use her powers under Clause 16 to move children into local authority placements quickly unless those children were in DfE-run accommodation, which DfE would be under no duty to provide. That uncertainty continues with regard to the application of Clause 19 and how any accommodation power linked to a government department that operates in England only could be applied to the devolved Administrations. For that reason, I invite the noble Lord not to move that amendment.
I asked whether confirmation could be given that the Government will adhere to the 18 minimum conditions in the UNHCR Detention Guidelines. It would be very helpful for the Committee to know specifically which ones they intend to comply with and which they do not.
As I have already indicated, the standards that will be adhered to are those prescribed already in legislation. While the points set out in the UNHCR’s document map on in some respects, there is no exact overlap. The regime which will be applied is that which I have already described.
I wonder if I could ask the Minister two questions. The first relates to his comment before last to my noble friend Lord Scriven about whether the Secretary of State for Education should be the corporate parent for government, as opposed to the corporate parent being local authorities. In the event where there is a delay after a child has arrived before a local authority is allocated to be the corporate parent, who is the corporate parent for that child? The Home Secretary does not have that power; there is no protection and no oversight. I say this in light of the fact that, in Kent, there is a special arrangement for Kent not to be the corporate parent for all unaccompanied minors that have arrived there, for fairly obvious reasons. The concern would be that that child might not get the protection that it needs. That is the first question, which is completely separate to the one on my Amendment 70A.
I am grateful to the noble Lord for his comments about appropriate healthcare, but without knowing what appropriate healthcare is and whether it meets standards that have been set out—even if he says that the guidance would not work—I am somewhat at a loss. Could he write to me to set out exactly what those standards were, because many doctors are extremely concerned about the current standards available for children in detention at the moment?
Yes, certainly. In response to those two points, as the noble Baroness will have seen, we will discuss this again when we reach Clause 15. But Clause 15(1) provides that the Secretary of State may provide or arrange for the provision of accommodation in England for unaccompanied children. As the noble Baroness rightly identifies, presently in Kent there is an agreement which works well. Initial reception facilities are provided by Kent County Council as the corporate parent, then any unaccompanied asylum-seeking children are transferred within the national transfer scheme. Obviously, it is sensible to have the powers in Clause 15(1) as a backstop, in the event that those powers might be needed. I hope that therefore provides a complete answer to the noble Baroness’s first question.
In relation to the second part of her question as to the standards, as I hope I have already made clear, we will be applying the standards that presently remain. It is abundantly clear that those standards are very detailed as set out. I would be happy to write to the noble Baroness to outline what they are. We will definitely be able to provide that.
I thank the noble Lord with regard to the first issue. I wondered if there was actual data on the time that it takes to provide that transfer for children. What I am concerned about is the gap; we may be discussing it later, but the noble Lord raised the issue himself. Could he provide me with a letter that shows exactly how long it takes to get that transfer through, because I am hearing that there are gaps?
Because the powers in the Bill are obviously not yet in force, I cannot answer as to whether there would be a gap. But clearly it is anticipated—it is hoped—that there will not be a need to utilise the powers in Clause 15 routinely, because the situation with respect to Kent and other relevant local authorities should provide an answer. I am afraid that the noble Baroness cannot expect me to look into my crystal ball and predict what the situation will be after the Act is implemented.
I am really sorry to prolong this. The noble Lord referred to the national transfer scheme. There is a concern that either it is taking some time or some children are not being transferred; they are, at the moment, without a corporate parent. There must be current data. That is why I ask: what is the normal gap and how many children have not been allocated?
I am very happy that the noble Baroness has asked me that question. I am delighted to say that, as of yesterday, there are zero children in Home Office UASC hotels. They are all in the care of local authorities. I hope that provides a fairly clear answer to her question. Perhaps I can invite the noble Lord, Lord Alton, to intervene.
I am grateful to the Minister. My question rather builds on what the noble Baroness, Lady Brinton, has been asking. Earlier I specifically asked about the disapplication of the duty on the Secretary of State to consult with the independent family returns panel and the criticism that has been made by the UK Committee for UNICEF, which said that it regretted that decision. I asked the Minister if he would give further consideration to that point and think further about the safeguards that it enables to be put in place to deal with the kinds of issues the noble Baroness has put to him.
I am very grateful to the noble Lord. I am sorry that I did not answer that question. The relevant provision is in Clause 13 of the Bill. We will come to discuss it in the 11th group of amendments. Perhaps that might be the moment to explore those detailed points more thoroughly.
My Lords, may I press the Minister on the issue of disabled asylum seekers? I raised this specifically in terms of what is happening in general provision, what is happening at Manston, how the Government foresee—or not—disabled asylum seekers being accommodated on barges and whether they foresee provision in the new arrangements under this Bill complying with UNHCR detention guidance for disabled asylum seekers.
The noble Baroness raises an important point. It is obviously right that our guidance reflects the special needs of disabled people in accordance with our duties under the Equality Act. That will continue to be the case. I hope that provides some reassurance for the noble Baroness.
My Lords, this has been a very interesting debate, not least because I have seen two lawyers agreeing with each other after having a debate of 10 or 15 minutes about a point of law. It is a fascinating experience.
To turn back to the amendments before us, I thank everyone who participated. In the response the Minister just gave, there are a number of matters which I would like to ask him about. If I understood correctly, he said it is the intention to only allow detention in line with the Immigration (Places of Detention) Direction 2021. I think that is what the Minister said. He then immediately said that, after this Bill is enacted, we will amend it—we will uprate it. I do not quite understand what the uprating mechanism is and why you need to uprate a direction you presently agree with. It would be helpful if the Minister could say what he means by uprating and if they are following the Immigration (Places of Detention) Direction 2021—which, I acknowledge, is the right thing to do.
On Campsfield and Gosport, the Minister said that the capacity would be increased. Could he give an indication of the numbers of places there will be in each of those, or the total for both.
Finally, I have what I consider a bit of a non sequitur, but the Minister said it several times and repeated it today. He said that return agreements are not a prerequisite for returns. I did not quite understand that because if you want to return somebody, you need an agreement that they will be taken. That seems to be an agreement. It was a bit of a non sequitur and certainly did not fall within the wonderful statements we had from the noble and learned Lord, Lord Bellamy, about these matters earlier. If the Minister could address those three questions, I will then be in a position to deal with the amendment.
As I hope I made clear, once the Bill is passed, the direction will need to be updated, rather than “uprated”. It will reflect the new provisions and any new detention facilities that are available to be utilised at that point. I am afraid that I am not in a position to give the noble Lord an indication of the size at this stage.
On returns agreements, as I think I made clear in a previous group on the second day in Committee, there are different relations with various countries, so circumstances can arise where people can be returned to countries with which we do not have a formal returns agreement. I can write to the noble Lord in more detail on that subject.
I thank the Minister for his answer. It would be helpful to know whether the matter of capacity of the two places is just unknown or whether it has not been concluded yet. If that is the case, I presume that the Minister could tell me at some stage what the capacity is.
This has been an important debate and I am sure we will return to it on Report. On the basis of those answers, I beg leave to withdraw my amendment.
Amendment 58B withdrawn.
58C: Clause 10, page 14, line 9, leave out “suspects” and insert “has reasonable grounds for suspecting”
Member's explanatory statement
This amendment probes the threshold for detention.
My Lords, we now move to the second area of Clause 10, which is about the powers of detention. The clause significantly expands the current powers and use of immigration detention. It removes the current protections for vulnerable groups and the current limits on the detention of children, which offer UASCs 24 hours, children and families 72 hours, and pregnant women 72 hours. It gives extensive detention powers to the Home Secretary, away from the scrutiny of the courts, removing effective remedies to challenge unlawful or unjustified detention. That upsets the constitutional principle of the separation of powers. I am sorry that one of the lawyers has disappeared, because I would have liked to have raised the matter of the separation of powers whereby, in the past, the courts have determined the appropriateness of how long people will be detained.
The Bill says that it is for the Secretary of State, not the courts, to decide the reasonableness of the period of detention. It therefore weakens judicial scrutiny and removes a safeguard which is especially important for individuals who are particularly vulnerable to harm from prolonged detention. The Hardial Singh principles, which were established through UK case law, place limitations on the Home Office’s detention powers, so that it is for the courts to determine the reasonableness of a given period of detention. Those are the current principles under which the courts operate.
The role of the courts, including the High Court in particular, in reviewing the lawfulness of detention is critical to maintaining the rule of law fully in accordance with the role of the judiciary under the constitutional principle of the separation of powers. In respect of detention, the Bill infringes that principle. I expect that the Minister will talk about habeas corpus, but that is not about the reasonableness of detention; it is about whether it is legal to detain. Clearly, that is a distinction which makes the case I am trying to make more appropriate and important.
Amendments 58C, 58D, 63A and 63B probe the threshold for detention; my noble friend Baroness Hamwee will talk about that in a moment. Leaving out “suspects” and inserting “reasonable grounds” to believe the person meets the four criteria of Clause 2 for removal. The lower threshold of “suspects” requires no evidence; I can suspect that something is happening without evidence, except when I see what I think I am seeing in front of me. However, having a cause for “reasonable grounds” means that there has to be some evidence. It is unclear whether legal advice will be available in presenting their case for the inadmissibility of due process, especially when there will have been no judicial oversight for 28 days, under the Bill.
Amendment 60 would reapply the existing statutory time limit on children, and we will support the amendments in the name of the noble Baroness, Lady Mobarik, on reapplying existing statutory time limits. This clause reverses the safeguards put in place during the coalition Government to end the routine detention of thousands of children and families. The Refugee Council says in its impact assessment that 13,000 people will be detained annually if this clause proceeds. That is an alarming departure, and the Bill will allow the routine, indefinite detention of children, unaccompanied or with their families. UK evidenced research and, more recently, that in Australia, demonstrates the long-lasting damage that detention does to children’s lives, physically and mentally.
The Bar Council—I believe it is a reputable body in understanding how the law works—considers it unlikely that these provisions in the Bill comply with the United Kingdom’s obligations under the United Nations 1989 Convention on the Rights of the Child, in particular, Article 37, which says that
“detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.
It is deeply troubling and surprising that Parliament should be considering a detention power that could potentially offend that convention. The British Medical Association echoes concerns expressed by the Refugee and Migrant Children’s Consortium that the proposals contained in this Bill will have
“severe consequences for the welfare and physical and mental health of extremely vulnerable children who have fled conflict, persecution and other unimaginable harms and are in desperate need of support, stability and protection”.
So, has the Home Office carried out a full assessment of the risks linked to detaining children and families?
Finally, the Delegated Powers and Regulatory Reform Committee’s report says that the procedures of the SI that are to come, the regulations, should be done by the positive procedure and not the negative resolution procedure which has been adopted. I would be grateful if the Minister said that the Government are considering that matter. In the end, what steps are the Government taking to ensure that individuals who are vulnerable and cannot be safely detained will be swiftly identified by appropriately qualified staff and released, with appropriate safeguards in place, following the removal of currently available legal challenge? Of course, we expect to see the Home Secretary’s risk assessment in the impact assessment which we understand is to follow.
My Lords, I would like to accept the invitation of the noble Lord, Lord German, as another lawyer, to address the Hardial Singh principles and habeas corpus, but since, on my reading of the Bill, they arise under Clauses 11 and 12 respectively, I think it might be best to reserve that treat for another day. I do have a question about Clause 10, which I candidly admit I do not find the easiest to understand. The Bar Council, in its briefing prepared by immigration practitioners far more expert than me, states that the powers already exist to detain any individual who is suspected to be subject to the Clause 2 removal duty, that Clause 10 does not provide for any additional persons to be detained, and that the purpose of the clause is simply to remove existing protections for unaccompanied minors, families and pregnant women. Is there any more to it than that?
My Lords, I shall speak to Amendments 59, 63, 64 and 67 standing in my name. I am immensely grateful to my noble friends Lady Helic and Lord Bourne of Aberystwyth and the right reverend Prelate the Bishop of Durham for adding their names to these amendments. I am also extremely grateful to the many children’s organisations that sent invaluable briefings and gave clarity on the subject. I refer noble Lords to the relevant interests in my name in the register.
The words “detention” and “children” have no place in the same sentence. In the case of this Bill, it can also mean the possibility of indefinite detention, as proposed by the Government. In 2010, the organisation Medical Justice coined the term “state-sponsored cruelty” in relation to children in immigration detention. Its reports highlighted the great calamity being inflicted on thousands of innocent children, with lasting and detrimental consequences, including leaving them traumatised and suicidal. This led to a deep conviction across the political spectrum that such practices were inherently wrong and that a better, more humanitarian approach had to be taken. A pledge was given in 2010 by someone seeking the office of Prime Minister—David Cameron. He pledged that, if elected as Prime Minister, child detention would end. He was true to his word, and it became part of the coalition’s programme for Government in 2010, with policy changed as soon as 2011. With the Immigration Act 2014, the routine detention of children came to an end. That was progress. It was, as one would expect, a humanitarian response to an unacceptable and cruel practice. It is therefore with some dismay and disbelief that we are seeing attempts to reverse the progress made. Almost a decade on, we are discussing the reintroduction of those measures in an even more draconian form.
This Bill creates powers to detain en masse those who arrive in the UK without permission, on or after 7 March 2023, because they are not coming directly from a country where their life and liberty are threatened. Fleeing war-torn Syria but crossing through, for example, Belgium disqualifies them. As mentioned many times, there are no legal routes to the UK for most of those seeking asylum here. Of those coming, thousands of children could face detention. This is not a random statement but one based on the Refugee Council’s careful analysis in its impact assessment of the Bill. The exact figures are available in its report, but over a three-year period it equates to around 13,000 to 15,000 children in detention per annum. We are talking about babies, toddlers, children who are victims of child trafficking, unaccompanied children and children with families—defenceless little people, many of whom have not yet learned to speak and others who may be of speaking age but have no English language. They are detained, and with no legally defined time limit to their detention. They are detained anywhere,
“in any place that the Secretary of State considers appropriate”,
and without the possibility of bail for 28 days. Needless to say, children’s and refugee organisations are aghast at what is being proposed. They are not alone. Many of us across all Benches in this House and the other place feel the same.
Let us stop and think for a moment that perhaps it is not the intention of the Home Secretary to lock up thousands of children. Perhaps we can put this down to the lack of an economic impact assessment or child’s rights impact assessment conducted by the Home Office itself. If that is the case, now is the opportunity, in Committee in this House, for my noble friend the Minister to reconsider what is being proposed. Of course it is understood that there will inevitably be very specific and limited occasions when children are detained, but the existing legislation already gives parameters for this. That is why I propose amendments to Clause 10, to retain the existing time limits of 24 hours in detention and with safeguards for unaccompanied children. Amendments on those who are with families seek to retain existing time limits so that they can be detained only for up to 72 hours, or not more than seven days where detention is personally authorised by a Minister. Importantly, this should be in short-term holding facilities or pre-departure accommodation.
Existing legislation on the detention of children, as under the Immigration Act 2014, is already in place. I ask only that the status quo be maintained. The Home Secretary may argue that by not detaining children we are creating another pull factor, but the evidence shows that there was no significant increase in the number of children seeking asylum once routine detention ended in 2011.
The question then is what the intention of the Government is if, as Prime Minister Sunak says:
“The intention of this part of the policy objective is not to detain children”.
We were given reassurances by the Minister during the Commons Report stage on 26 April that,
“we do not want to detain children. We will do so only in the most exceptional circumstances”.
There was also assurance from the Minister that the time limits
“will be as short as practically possible”.—[Official Report, Commons, 26/4/23; col. 837.]
However, these tests of “most exceptional circumstances” and
“as short as practically possible”
cannot be found in the Bill. All that can be found following the Government’s amendment is a delegated power for the Home Secretary to make regulations under the negative procedure that specify circumstances for the detention of unaccompanied children. There is also a discretionary power for the Home Secretary to make regulations that specify time limits. There is no clarification in the Bill as to the length of the time limits for detention or to which unaccompanied children they might apply, or how discretion might be exercised. Moreover, the regulations may or may not specify time limits for unaccompanied children. We have no assurance in the Bill that they will. Either way, they will do nothing for children and families.
I understood from my noble friend the Minister that later in the Bill’s passage the Government propose to
“set out the new timescale under which children may be detained for the purposes of removal without judicial oversight”.—[Official Report, 10/5/23; col. 1783.]
I must ask for clarification from my noble friend. If the Government truly wish to detain children for as short as practically possible, why are they disapplying the 2014 safeguards to children affected by this Bill? These safeguards were put in place by a Conservative Prime Minister and a Conservative Home Secretary.
Given this late stage in the Bill’s passage, when do the Government propose to set out these new timescales in the Bill, and what will they be? What are the circumstances in which unaccompanied children would be detained and why can these “most exceptional circumstances” not be stated on the face of the Bill and be open to full scrutiny during its passage? Will those timescales in regulations be an absolute time limit for the detention of children, or merely a timescale for judicial oversight of that detention? As a country in which the rule of law is a pillar of our constitution, can we detain children without judicial oversight? I presume detention is for the purposes of removal but would like clarification on whether the Government are proposing child detention for other purposes. If so, can the legal basis for such detention be explained?
Verbal reassurance is completely inadequate. I am no expert but I understand that this is not the way that laws are made. Laws must be much more firmly established. They cannot just fluctuate depending on which Home Secretary is in the driving seat; that is surely a dangerous precedent. Amendments 59, 63, 64 and 67 seek to place our current safeguards for the detention of children in the Bill, so that children impacted by it need not rely on mere verbal assurance. I understand that the issue of illegal migration is complex and requires a deterrent factor so that those who genuinely qualify can be identified, and that it requires a genuine solution, but I think most here would agree that the solution being proposed is not the right one on so many levels.
We are speaking about defenceless children. I say to noble Lords that it may be difficult for us to think back to our six year-old selves, so let us think about our children or grandchildren, who have neither the physical strength to defend themselves nor the verbal sophistication. We have a moral obligation to ensure that we protect the rights of these most vulnerable human beings.
My noble friend the Minister has a really difficult task, and he is aware that I am not comfortable with many aspects of the Bill. However, I hope he will acknowledge that with these amendments I am offering something he can accept as a viable alternative to what is currently proposed in the Bill. I look forward to his response.
My Lords, I support these amendments generally, in particular those in the name of the noble Baroness, Lady Mobarik—it is a pleasure to follow her powerful speech. I have added my name to Amendments 60 and 65.
It was to the Conservative-led coalition Government’s credit that they ended the routine detention of children and replaced it with strict limits. It is thus inexplicable, as the noble Baroness said, that the present Conservative Government should choose to reverse that policy. Prior to that reversal, the Royal College of General Practitioners, together with other royal colleges, published an intercollegiate briefing paper which described the
“significant harms to the physical and mental health of children and young people in the UK who are subjected to administrative immigration detention”.
It concluded that the immigration detention of children and their families is “harmful and unacceptable”. Among the evidence at the time was that provided by Medical Justice clinicians, who
“identified psychological harm to be caused and exacerbated by detention. Symptoms included bed wetting and loss of bowel control, heightened anxiety, food refusal, withdrawal … and persistent crying. Many children exhibited signs of developmental regression … some attempted to end their own lives”.
Today, many organisations—health, children’s and refugee—have briefed us about the likely health implications of such a reversal. To quote the Refugee and Migrant Children’s Consortium, the effects on children’s
“physical and mental health included weight loss, sleeplessness, nightmares, skin complaints and self-harm, depression and symptoms of post-traumatic stress disorder”.
It also cites, as did the noble Lord, more recent collaborative evidence from Australia. The Royal College of Psychiatrists warns of the likely damaging impact on child mental and physical health of
“the restriction of movement, lack of community exposure, and limited access to health and educational services”
associated with detention. The Independent Advisory Panel on Deaths in Custody, a non-departmental public body, has warned the Home Secretary that this is
“a group who are particularly vulnerable, including in respect of mental ill-health, self-harm, and suicide due to trauma caused by dislocation from family”.
It also emphasises
“the link between the indefinite nature of detention and feelings of uncertainty and hopelessness, which can increase the risk of suicidality”.
A group of people with lived experience of the asylum system who advise Doctors of the World have written an open letter to Peers which speaks of their particular concern about the detention of children and pregnant women, whose plight I think we will debate shortly. However, more generally on the basis of their experience they write that
“some of us start shaking when detention centres are mentioned, or crying when watching the news about this Bill”.
The Children’s Commissioner has expressed deep concern at the prospect of children being detained for significant periods of time. She has not been reassured by the government amendment—mentioned by the noble Baroness—which does not specify any time limits or cover children who are with their families. Can the Minister tell us what steps will be taken to ensure that children are detained for as short a period as possible, as he assured us they would be? Also, what is his estimate of the numbers of children in detention as a result of this change of policy, in the absence of an impact assessment?
The Children’s Commissioner points out that Article 37 of the UNCRC is clear that children must be detained for as short a time as possible. UNICEF makes the point even more strongly, warning that the broad discretion on the detention of children provided by the Bill
“is not compatible with international standards”
“would not comply with the principle of the best interests of the child”.
Some, including the Committee on the Rights of the Child, have gone so far as to argue that Article 37 means that children should simply not be detained at all in an immigration context. Whether or not one accepts that interpretation, it is clear that the powers given to the Home Secretary in Clause 11 once again contravene a key international convention.
Although the Chief Inspector of Prisons’ report published yesterday, mentioned earlier by the noble Lord, Lord German, welcomed some improvements in the short-term holding facilities in Kent, it noted:
“Children were detained for far too long at all sites”.
During the previous six months:
“Detention records indicated that 337 children had been held in breach of the statutory 24-hour time limit”,
with one held for just over three days. It notes that some particularly vulnerable children were held for too long, giving the example of a 17 year-old girl with a 10 month-old baby—conceived, she said, following rape—who was held from 11.30 am and then overnight, for nearly 24 hours. If this is already happening, I dread to think what the situation will be like if Clause 10 reaches the statute book.
The incentives—pull factor—argument used by Ministers in their attempt to justify this retrograde policy would be laughable if the implications for children’s well-being and best interests were not so serious.
My Lords, I support Amendments 59, 63, 64 and 67. I believe these are measured and proportionate steps to preserve existing safeguards around child detention—safeguards introduced by a Conservative Government.
Child detention must only ever be a last resort. That is a clear requirement, as many have said, of Article 37 of the UN Convention on the Rights of the Child, which also requires that detention be for the shortest appropriate time. Article 22 requires states to ensure that children seeking refugee status receive “protection and humanitarian assistance”. I hope and believe that these principles will be recognised and shared across your Lordships’ Committee.
There is strong evidence that the mental and physical health impacts of detention on children are severe. For refugee children, often escaping from traumatic circumstances, detention can further compound their trauma. Detention separates children from their peers, interrupts their education, exposes them to violence and denies them the safe, loving and supportive environment that children need to develop and thrive, and which is their right. Detention undermines parental authority and strains the parent-child relationship. This lasts well beyond the period of detention itself. Even short spells in detention can cause trauma and long-term mental health risks for children. When we detain refugee children, we should know that we are making their future lives and integration into society even harder.
My noble friends in government may have said that they recognise these impacts and do not want to detain children, but I am afraid that, as written, this is precisely what the Bill will do. My noble friend Lady Mobarik has explained the existing limits and how the Bill would change them. To reiterate: the detention powers in the Bill would apply to all migrant children and could see them routinely detained in any location for an indefinite period. This is simply not in line with the principle of child detention as a limited last resort.
We know that the immigration system is overstretched. As such, we can reliably expect every time limit and latitude granted to immigration officials by the Bill to be exploited to the full. Therefore, we must make certain that children’s rights and the limits on their detention are guaranteed in law. It is not good enough for my noble friend the Minister to say that child detention should be exceptional. The law must make it exceptional.
There are some problems which new laws can solve. There are other times when new laws will have no effect—or such serious side-effects that they are entirely disproportionate to the problem. If the Government do not feel that they can regulate immigration and asylum without locking up children for extended periods, that is indicative of a broken system. It is not a problem that is resolved by detaining children.
There is no evidence that the introduction of the existing limits on child detention have led to an increase in illegal immigration. There is no reason to think that removing these limits will improve the Government’s ability to control immigration and prevent the dangerous channel crossings. Exposing children to greater risk of harm, with no guarantee of preventing harm, is not a step we should accept.
The existing limits on child detention, brought in after careful consideration by the Conservative Government, meet the practical need that sadly exists. They ensure that detention is strictly controlled and time-limited, as the UN Convention on the Rights of the Child requires. They mitigate the harm that detention causes. They make detention the last resort. That is what we must retain, and I urge noble Lords to support these amendments.
I remember well when the detention of children was ended by legislation. I visited Cedars, the property—I do not like the term “facility” in this connection—near Gatwick that was used for two or three days before the removal of families who were going to be removed and were at the end of the argument, if you like. What was particularly notable to me were the facilities for the children, and the support that was given to them, who were accommodated there for a very short time, to help them prepare to go back to a country that they may or may not have remembered—indeed, that they may not have ever lived in. It suffused the whole place and was really admirable. You only had to walk into the place to see the equipment and toys, and the information that was set out, as well as the work being done by social workers to support the children concerned. There were no families there at that point; the property used to allow visitors only on days when it knew that no families would be in residence.
I have a number of amendments in this group. The first is Amendment 59A, which seeks to probe the “discretion” given to the Secretary of State in making regulations regarding the detention of unaccompanied children. Amendment 64A is a similar amendment. The reason for my tabling this amendment is to understand whether the envisaged discretion can be exercised to extend the circumstances specified in an earlier part of the clause or to narrow those circumstances.
I discovered a possible answer to this when looking at my next amendment, Amendment 61B, which would provide for the affirmative procedure. Amendment 64C is a similar amendment. I tabled this amendment out of pure instinct that there should be an affirmative procedure, not a negative one. I subsequently discovered that the Delegated Powers and Regulatory Reform Committee, with considerably more logic than I bring to the matter, recommended the affirmative procedure. I quote its report:
“The Memorandum explains that the negative procedure is considered appropriate because ‘the effect of any regulations is to limit the circumstances in which an unaccompanied child may be detained or the duration of detention for the purposes of removal’. In our view, this explanation is misconceived”.
That is very much committee speak for, “We really disagree”. The report went on:
“The regulation making power can only be viewed as a limiting power from the perspective of the Bill as introduced into the House of Commons which conferred an unfettered power to detain unaccompanied children”.
However, amendments were then made in the Commons, so
“no such unfettered power of detention exists in the Bill as introduced into the House of Lords. It is the regulations alone which will specify the circumstances in which unaccompanied children will be capable of being detained, in the absence of which there is no power to detain such children. Given the importance and sensitivity of the subject matter, we consider that the affirmative resolution procedure should apply”.
As I say, the committee approached this with considerably more logic and power than I was planning to bring to it.
Amendments 74, 75 and 76 regard matters on which I rather doubt there will be sympathy from the Government Front Bench, given the debate so far. They would provide for a 72-hour time limit on the detention of vulnerable people, or seven days with ministerial authorisation. I remember some years ago a meeting chaired by a very senior MP who had been a Minister. She argued how important it was to have ministerial authorisation in sensitive and arguably unusual cases because it ensures that Ministers apply their minds to the individual’s real situation.
Pretty much everyone has been through what led to flight and the experience of that flight—people must be vulnerable. There is a definition of vulnerability in Amendment 76, and I think it would be hard to argue that anyone in the list is not vulnerable and therefore in need of appropriate treatment.
Amendment 75 would require the Secretary of State to provide to the tribunal all relevant—which I realise now has become quite a topical term—information they have on an individual when there is an application for immigration bail or a bail hearing.
Amendments 76B and 78A would restrict the detention of potential victims of slavery and trafficking. We have already in this Committee spent some time on reasonable and conclusive grounds, and that a victim or potential victim can be referred only by a first responder; there is no self-referral. We have also spent time on the very particular needs of potential victims, including those who have reached the first stage of a “reasonable grounds” decision.
The detention of this already vulnerable group increases the risk of retraumatisation and there is a risk to their long-term physical and mental health. On Monday, the noble Lord, Lord Alton, talked about the fact that victims must be identified because that enables them to be supported. In turn, as the noble and learned Baroness, Lady Butler-Sloss, has referred to several times, that affects the willingness and ability— ability is important too—to engage in investigations and prosecutions. This group of people is very much at risk of retrafficking and further exploitation, and needs the protection that these amendments put forward.
My Lords, I speak in support of Amendments 59, 63, 64 and 67 which, as has been demonstrated, have strong support from all quarters of this Chamber. It was the intention of the right reverend Prelate the Bishop of Durham to speak to these amendments but he is unable to be in the Chamber tonight.
I believe that the strength of opposition to any change in the current detention limits for both accompanied and unaccompanied children is because it is one of the most alarming and unedifying provisions in the Bill. Ministers have set out what they see as the need to detain children for immigration purposes in order to ensure that we do not inadvertently create incentives for people smugglers to target vulnerable individuals. Were this the case, then there would be a case for considering some sort of remedy. However, yet again we have been provided with no evidence that this is the case.
Building an asylum system with deterrence diffused throughout, as described by His Majesty’s Government, has led to this inappropriate proposal to restart detaining children, potentially for an unlimited period. As the noble Baroness, Lady Mobarik, said, it was a Government led by the party currently in office who took the brave decision to end the routine detention of children. That was against significant departmental pressure to retain the practice. How have we arrived, just 10 years later, at the conclusion that the well-being and welfare of children can now be sacrificed in consequence of the need to control migration?
In a rare admission to an evidential base for policy, on Monday the Minister referred to most persons deemed children in these categories being around the ages of 16 and 17. I accept his assertion on this point. However, as was said then, some children as young as 10 are involved.
The noble Baroness, Lady Mobarik, elegantly set out the impacts of detention of children. Studies show that the inescapable institutional nature of detention is traumatic for children and detrimental to the child’s physical and mental development. The Government are fully aware of the damaging impact of detention on children. I quote from one small section of the Home Office’s Assessing Age guidance, published only this March:
“Failure to adhere to the legal powers and policy on detaining children can have very significant consequences, for example … detention can be extremely frightening for a child, with their perception of what they might experience potentially informed by previous negative experiences of detention”.
It needs to be said explicitly that the Government will be sanctioning an intolerable level of emotional distress for the most vulnerable children. Understandably, a child will ask themselves, “What must be wrong with me to have been subjected to such conditions?”.
The Prime Minister stated that the Government’s objective behind the Bill is not the detention of children. None the less, that is what the Bill does. Given the Prime Minister’s just objective, why has the 2014 requirement that child detention be for the shortest time possible been expressly removed? In the year to March 2023, more than 8,000 children entered the UK who would meet Clause 2 conditions and who therefore could be detained indefinitely. In the first three years of the Bill’s operation, this may mean that up to 25,000 children will be deprived of their liberty. Should the deterrent effect of the Bill—about which we currently have no modelling whatever—fail, surely the 2014 requirement must be retained.
The Home Secretary bears a legal duty to safeguard children. Home Office guidance makes clear that this duty requires a demonstration of fair treatment that meets the same standard that a British child would receive. Would we tolerate the Bill’s proposals for our own children or grandchildren?
I welcome the amendments made in this area in the other place, but they do not go far enough. Legislating for the option to place limits on detention and for these limits not to be specified in the Bill is simply not adequate. It is an area that cannot remain entirely at the discretion of a Secretary of State, and children must have a means of challenging the lawfulness of a decision. Also, there have been no equivalent provisions for children within families. Why is one child different from another? Children will be detained after they have fled unimaginable horrors at home or been trafficked against their will. Children will be born in detention and others will have their futures shaped by it. It is the hope on these Benches that we are better than this and know what is right, having banished this immoral practice before. It will take real courageous leadership to change course, but we must. There is concern among my brother and sister bishops about the state of the nation’s soul if we tread so easily down this path.
My Lords, that was a powerful intervention by the right reverend Prelate the Bishop of Southwark, whom it is a privilege to follow. I pick up a point he made a few moments ago about the amendments that were passed on Report in another place. Like him, I welcome those amendments but do not believe they go far enough. Nevertheless, the House of Commons recognised in those amendments that the power to detain unaccompanied children under the Bill should be exercised only in the circumstances specified in regulations made by the Secretary of State. Those regulations may include a time limit on such detentions, but the Bill neither requires nor establishes what other restrictions on detention will be put in place.
This is why the point that the noble Baroness, Lady Hamwee, made about the use of the affirmative resolution is so important. As things stand, the House of Lords Delegated Powers and Regulatory Reform Committee was right to say that, given the importance and the sensitivity of the subject matter, if regulations are made concerning the detention of children, the affirmative resolution procedure should apply. I hope that, when the Minister responds, he will deal specifically with that point and perhaps discuss with us how Clause 10 might be amended to take into account what the Delegated Powers and Regulatory Reform Committee suggested.
I turn now to the substantive points made in the wonderful speeches by the noble Baronesses, Lady Mobarik and Lady Helic, from the Conservative Benches. I hope that the Government will take into account the arguments that they have placed before your Lordships tonight. There is an echo of what they said in the evidence from the UK Committee for UNICEF, to which I referred in an earlier intervention, which said this about Clause 10, permitting the detention of children both unaccompanied and in families:
“This is not compatible with international standards and also risks undermining the great progress that the UK has achieved in working to end immigration detention of children since 2010”.
That point was made eloquently by both noble Baronesses, who do not want to see the clock turned back.
Whatever limits on the detention of children are made in regulations issued by the Secretary of State, they are unlikely to be sufficient to meet the requirements of the United Nations Convention on the Rights of the Child. Article 37(b) of the convention establishes the general principle that a child may be
“deprived of … liberty … only as a … last resort and for the shortest … period of time”.
The UK Committee for UNICEF says:
“Two relevant UN Committees have stated that the possibility of detaining children as a measure of last resort … is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development … The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has stated that ‘within the context of administrative immigration enforcement … the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children’”.
The power to detain unaccompanied children pending removal or a decision on whether to grant them leave to remain would no longer be subject to the 24-hour time limit and other protections currently provided in Schedule 2 to the Immigration Act 1971. The Refugee and Migrant Children’s Consortium, referred to by the noble Baroness, Lady Lister, noted that this time limit was established by law
“because widespread evidence showed the long-lasting damage that detention has on children’s lives”.
The Government have stated that the detention of unaccompanied children will be
“for the shortest possible time in appropriate detention facilities with relevant support provisions in place”.
In an echo of what the noble Baroness, Lady Brinton, said earlier, I simply press the Minister to say what that word “appropriate” actually means. Please spell it out, because it has no definition as things stand and we are being asked to agree to something pretty awesome in this Bill tonight. That is why the speeches by the noble Baronesses, Lady Mobarik and Lady Helic, are so important and the Government should take proper note of them.
My Lords, at this hour, I do not propose to repeat anything that has been said, so splendidly and excellently, in relation to children, save to say that it is good news that, as the Minister told us, there are no unaccompanied children currently being detained. But that does not mean that they will not turn up next week, and there will certainly be unaccompanied children in the future.
I will say something very briefly about Amendments 76B and 78A on modern slavery from the noble Baroness, Lady Hamwee. I refer to my involvement in various aspects of modern slavery, which I set out earlier. I am very concerned, because it is intended that victims of modern slavery who have got through the first part of “reasonable grounds” ought, under the NRM, to be given the appropriate support. The support provided when they get to that stage of the NRM is generally very good, but none of it, as far as I can see, would be available to those detained by the Home Office under the Bill. That would be a huge deprivation to people who, by definition as having been trafficked, and likely to have been trafficked as well as enslaved, will have already suffered very greatly. This is really an extraordinary and another very cruel move of this Government.
My Lords, I will speak briefly in support of Amendment 59 and its accompanying amendments. We have heard from many tonight about the impact that detention has on children; I do not need to repeat that. We heard on Monday from my noble friend the Minister, making the case against creating loopholes in this legislation. I understand his reasons for that, but, like the group that follows, this amendment is about detention and not the other powers in the Bill. We also heard on Monday from the Minister that we cannot evidence what is yet to happen. Of course we cannot, but we can look at what has happened before in this area. When routine child detention was ended in 2011, there was no proportional increase in children claiming asylum.
We all remember the situation before the current protection was in place, in Yarl’s Wood and elsewhere. I remember the campaign back in 2010, which garnered support from hundreds of parliamentarians and parliamentary candidates across the political and professional spectrum. I remember the pledges of all political parties to end child detention if elected, and I remember the then Prime Minister, David Cameron, delivering on that commitment. There remains widespread cross-party support for not returning to child detention and for maintaining the status quo of the current protections.
At Second Reading, four weeks ago today, my noble friend the Minister said that later in the passage of the Bill the Government would set out the new timescale under which children may be detained. That is very much welcome. It is clear from tonight’s debate that that detail is needed. I hope that this report will be simpler and quicker to produce than the oft-raised impact assessment. Is there any update on when this timescale will come, and can my noble friend confirm that we will see it before Report?
The troubling situation that we are seeing in our immigration and asylum system—the small boats, the backlog in processing, and the lack of broader safe and legal routes—was not caused by the lack of detention of children, and nor will it be solved by reversing our long-standing policy against child detention. I hope that my noble friend the Minister will consider accepting these amendments.
My Lords, I will speak to Amendments 60 and 65 in my name. I thank my noble friend Lord German and the noble Baronesses, Lady Lister of Burtersett and Lady Bennett of Manor Castle, for adding their names to these amendments.
Because of the lateness of the hour, I will not add to the very powerful speech by the noble Baroness, Lady Mobarik, and give all the reasons why increasing child detention time limits is a bad thing to do. However, I want to go back to what so many noble Lords have asked during this Committee stage: where is the evidence that this is required? The Government have not given any evidence or any reason why 24 hours-plus is required. Since the time limits for unaccompanied children were introduced back in 2014, there has been no empirical evidence and no indication of problems that have arisen which have caused either a pull factor or a push factor for child migration to this country. What is the problem? For a change of policy of this significance, which affects some of the most vulnerable children in the world, the scale of the problem and what problem this will solve have to be put before this House.
We could make the comment that so many noble Lords have, and which I am sure the Minister might: in due course, it will be in the impact assessment. However, the real issue is this. When the Minister stands up at the Dispatch Box, the reason and evidence for this, and the problem it is going to solve, need to be placed before your Lordships, otherwise we cannot in any conscience extend the detention limits.
It was a great part of our history when the Deputy Prime Minister in the coalition Government, Nick Clegg, insisted that children, for immigration purposes, should not be detained, and the Conservative partners in that coalition Government agreed. Noble Lords can see that nothing has changed, so the Minister has to explain what the problem is, what has changed and what problem this will solve.
My Lords, it is a pleasure to follow the noble Lord, Lord Scriven, and to speak specifically to the amendments in this group to which I have attached my name and to the general tenor of this. I did consider not rising to speak at all, because the incredibly powerful speech of the noble Baroness, Lady Mobarik, and her proposition that the words “detention” and “children” do not belong in the same sentence, can be said to sum up all of this debate.
However, I did want to give voice to someone else in this debate—the voice of a nine year-old who was held in immigration detention previously in the UK before the laws were changed. When asked how detention made her feel, this nine year-old said very simply, “Sad and angry. Feel like screaming or breaking something”. That is a nine year-old, talking about the kind of experience that we could again be subjecting children to in this country if the Bill goes through.
To put that in terms of a 2009 briefing paper from the Royal College of GPs, the Royal College of Psychiatrists, the Royal College of Paediatrics and Child Health, and the Faculty of Public Health:
“Reported child mental health difficulties include emotion and psychological regression, post-traumatic stress disorder … clinical depression and suicidal behaviour.”
A more recent paper, published in 2023 by Tosif et al, entitled Health of Children Who Experienced Australian Immigration Detention, said it showed devastating impacts on children’s physical and mental health and well-being and on their parents’ parenting capabilities. I wanted to allow that voice to be heard and to share that medical reference.
I just want to make one final reflection. There is a hashtag I use on Twitter quite often, #CampaigningWorks. Sometimes people say, “Well, it should have worked indefinitely. Why do we have to fight this same battle again?” I think that what the Government have got this evening is a very clear message that this battle has been fought before. We have learned a huge amount and got all the evidence from last time, and it is going to be fought again, even harder, from all sides of your Lordships’ House, to stop this element of child detention and to stop this Bill going through.
My Lords, it is a privilege to follow a number of the contributions to this debate. I shall concentrate on Amendments 59, 63, 64, and 67 by the noble Baroness, Lady Mobarik. These, along with some others, are the most important amendments in this group, and we support what she has said.
I am a proud Labour politician, but I am not someone who thinks a Conservative Government have never done anything that deserves recognition or praise. The Modern Slavery Act is one such thing; the noble and learned Baroness, Lady Butler-Sloss, and I do a lot of work with respect to modern slavery, and we know that to be the case. Another, under the prime ministership of David Cameron, was the ending of child detention for immigration purposes. That Government —to be fair, they were a coalition Government—deserved an awful lot of credit for that, since it was an affront to our country that it was happening in the first place.
So it is a great surprise to us to see this Government, in their desperation to do something about the small boats crossing—which we all want to see something done about—driving a coach and horses through that. I would have thought they would have said, “This is something we are proud of. This is what we stood up for. Whatever measures we take to try to deal with small boats, we will not abandon that principle”. I know the Minister will say that the Government made a concession in the other place and came forward with a regulation-making power that will allow exceptions to be made and so forth, but that is not good enough.
The noble Baroness’s amendments are supported by the right reverend Prelate the Bishop of Southwark, my noble friend Lady Lister and many others, and I hope the Government listen. Whatever else we would wish to see done in order to tackle the problem that we face with respect to small boats crossing the channel—and there is a problem—I do not think any of us want to see children used as one of the ways of doing that. To be fair, I do not believe the Government would wish that either, but the fact is that the legislation as it stands means that unaccompanied children will be detained, and most of us find that unacceptable. That needs to change. We need to go back to the situation that existed before, as suggested by the amendments by the noble Baroness, Lady Mobarik.
I have a specific question for the Minister. Many of us received the briefing from the Refugee and Migrant Children’s Consortium, which says:
“If the Government’s intention is to detain and remove those arriving on small boats, then more than 13,000 children may face detention annually under this government proposal”.
Is it wrong? If so, it is incumbent on the Minister, if not now, to look at the way in which the organisation has arrived at that figure and tell us why it is wrong. Thirteen thousand children annually facing detention under the Government’s proposals is a significant number of children.
If that figure is wrong—this goes back to the problem of the impact assessment—then what figure are the Government using? The Minister says, and the noble and learned Baroness, Lady Butler-Sloss, referenced this, that there are no unaccompanied asylum-seeking children in detention at present. What assumptions are the Government working on here? They must have some figures somewhere for their expectation of the number of children who will be impacted by the proposed legislation as it stands. It would be helpful for us all to know what the Government’s assumption is of the number of unaccompanied children who may be detained as a result of these measures. Presumably they have scoped out the regulations that may be necessary which the Secretary of State may pass in future, so what is the number that the Home Office is working towards?
Secondly, what is the number of children who would be detained under the measures as currently drafted in this Bill who are with a family? I think it would be extremely helpful to all of us to have some sort of understanding of the number of children the Government are expecting their proposals to impact.
We have heard movingly from the noble Baronesses, Lady Mobarik and Lady Helic, and the right reverend Prelate the Bishop of Southwark about all the moral reasons for which we should not proceed with the Bill as it is currently laid out in respect of children. I think that the country would be in a situation where it would say to our Government that, whatever they do to control small boats, not to do it at the expense of children.
My Lords, Clause 10 is an integral part of ensuring the success of this Bill, both as a deterrent and as a means of ensuring that the Home Secretary can comply with the duty to make arrangements for removal. The statutory powers to detain are spread across several different pieces of immigration legislation, such as the Immigration Act 1971 and the Nationality, Immigration and Asylum Act 2002. The provisions in this clause create new powers that will enable the detention of illegal migrants to establish whether the new duty to remove applies and to promptly remove those eligible from the UK. Many of the amendments in this group seek to limit these detention powers in one way or another, impacting our ability swiftly to remove those to whom the duty applies.
Amendments 58C, 58D, 63A and 63B, tabled by the noble Lord, Lord German, probe the threshold for detention and in effect seek to raise it by replacing the current test based on an immigration officer or Secretary of State suspecting the relevant matter with a test that requires an immigration officer to have “reasonable grounds for suspecting.” To deliver the objectives of this Bill, our detention powers need to enable detention of illegal migrants to ascertain whether someone falls within the duty to remove, and these amendments seek to reduce our ability so to do.
The issue of time limits is the subject of Amendments 60 and 65, tabled by the noble Lord, Lord Scriven, and Amendments 59 and 63 tabled by my noble friend Lady Mobarik and co-signed by my noble friend Lady Helic. The detention powers in the Bill are fundamental to our approach, and here, as elsewhere, we need a robust and uniform scheme that broadly applies to all and does not allow the system to be gamed, for example by adults pretending to be children, or provide scope for the people smugglers to exploit any exceptions or carve-outs. The Bill will create new detention powers specific to all migrants subject to the duty to remove being introduced in this Bill. These new powers will not be time-limited. However, in line with our other existing immigration detention powers, detention will be limited to a period of time that is reasonably necessary for the statutory purpose to be caried out. The new detention powers will not be subject to the same statutory limitations as existing detention powers to ensure the power can apply more widely.
We recognise the particular vulnerability of unaccompanied children, and therefore the Bill provides that the statutory detention powers may only be exercised to detain an unaccompanied child in circumstances prescribed in regulations by the Secretary of State, such as, but not limited to, for the purpose of family reunion or where removal is to a safe country of origin. We will set out, in due course, having reflected on debates in this House and the other place, a new timescale under which genuine children may be detained for the purposes of removal without judicial oversight—
I will certainly take that request back to the department.
Along with a new timescale under which genuine children may be detained for the purposes of removal without judicial oversight, the Bill will also allow the Secretary of State to make regulations specifying time limits to be placed on the detention of unaccompanied children for the purpose of removal, if required. I would remind my noble friends Lady Mobarik, Lady Helic and Lady Sugg that unaccompanied children are not subject to the duty to remove and the power to remove them will be exercised only in the limited circumstances we have already described. For the most part, unaccompanied children will not be detained under the provisions of the Bill but will instead be transferred to local authority care—that care which the Committee has broadly agreed is the correct place for these children to be located.
In answer to the question of the noble Lord, Lord Coaker, I do not recognise the figure of 13,000 detained unaccompanied children in the NGO report to which he referred. Those statistics did not of course include any allowance for the deterrence effect of the measures in the Bill.
Amendment 73, put forward by the noble Lord, Lord German, seeks to introduce time limits on detention that apply at large, not just to detention under the powers conferred by the Bill. An absolute bar on detention of all children and a 28-day time limit on detention of adults would significantly impair the effectiveness of our enforcement powers. Such a time limit is likely to encourage individuals to frustrate immigration processes to the point where the time limit is exceeded, necessitating their release, which would then significantly inhibit our ability to remove those who have no right to be here and are subject to the duty. I agree that immigration detention cannot, and should not, be indefinite; as we will come on to with later clauses, the legislation places clear limitations on the duration of detention and provides for judicial scrutiny of continued detention. We judge the existing safeguards provided for in respect of existing and new detention powers to be sufficient.
Amendments 61B and 64C, tabled by the noble Baroness, Lady Hamwee, relate to the recommendations of the Delegated Powers Committee. I am grateful for the work of the Delegated Powers Committee in its careful scrutiny of the Bill. We are considering the report, published just before the Whitsun Recess, and will respond ahead of Report stage.
Turning to Amendments 74, 75 and 76, which relate to the detention of vulnerable persons, I can assure the noble Baroness, Lady Hamwee, that the existing adults at risk policy, which I discussed earlier, will be updated to take account of the provisions in the Bill, and will act as a safeguard when detention decisions are made in respect of such persons. This statutory policy requires that evidence of a person’s vulnerability be balanced against immigration factors when considering whether detention is appropriate in their particular case. Finally, I remind the noble Baroness that under the terms of Section 59 of the Immigration Act 2016, revisions to the statutory guidance must be laid in draft before each House and then brought into force by regulations subject to the negative procedure, so there will be an opportunity for this House to scrutinise the necessary changes.
There are no exemptions from immigration detention for any particular groups of people. Amendment 76B, again tabled by the noble Baroness, Lady Hamwee, seeks to create an exemption to immigration detention for potential victims of modern slavery. When decisions are currently made regarding detention or continued detention, potential victims of modern slavery are considered under the existing adults at risk in immigration detention policy.
To sum up, the Government recognise that unaccompanied children are particularly vulnerable. That is why we amended the Bill in the other place to place limitations on their detention under the powers conferred by the Bill. For all others caught by the duty to remove in Clause 2, we believe it is appropriate for the Bill to provide for a single legislative framework for their detention, with tailored provision being made in our adults at risk statutory guidance. On that basis, I invite the noble Lord, Lord German, to withdraw his amendment.
My Lords, it has been an interesting debate in which it appears there has been one speaker against and everybody else in favour of changing the Government’s proposal.
To sum up the discussion, with the exception of the Minister, the key issues have been the impact of detention on children, that this is a backward step, that it is not in line with the United Nations Convention on the Rights of the Child and that no evidence is given of a sufficiently robust nature to state the objectives of these clauses. To sum it up in a single phrase, “We are going to lock children up to deter the boats”. The rationale of locking up children has just been put to one side. It is a backward step. Therefore, I am sure we will return to these matters at the next stage of the Bill. In the meantime, I beg leave to withdraw my amendment.
Amendment 58C withdrawn.
Amendments 58D to 67 not moved.
68: Clause 10, page 17, line 18, leave out from “paragraph” to the end of line 19 and insert “(a) of the definition of “relevant detention power”, after “paragraph 16(2)” insert “, (2C) or (2D)””
Member's explanatory statement
The effect of this amendment is that section 60 of the Immigration Act 2016 (which limits the detention of pregnant women normally to 72 hours under existing powers of immigration detention) will apply to the new powers of detention created by Clause 10 of the Bill.
I am very grateful to the right reverend Prelate the Bishop of Gloucester, who sends her apologies that she cannot be here, but who asked me to underline her strong support. I am grateful to the noble Baroness, Lady Gohir, for her support for both amendments, and the noble Baroness, Lady Sugg, and my noble friend Lady Chakrabarti for each signing one of them. I am grateful to Women for Refugee Women and Medical Justice for their briefings on the amendments, but I feel we really cannot do them justice at this hour.
Amendment 68 does no more than restore the status quo ante, restricting the detention of pregnant women to 72 hours, extendable up to a week with ministerial authorisation. This restriction was introduced by the Immigration Act 2016 thanks to the strong opposition in your Lordships’ House to the detention of pregnant women.
Prior to that, there was no time limit and, although policy stated that pregnant women should be detained only in exceptional circumstances, in practice they were all too often detained in far from exceptional circumstances, and often for long periods. The Bill would return us to those dark days.
The government-commissioned review of the welfare of vulnerable people in detention by Stephen Shaw, a former Prisons and Probation Ombudsman, recommended the absolute exclusion of pregnant women from detention. That formed the basis of an amendment that I tabled in your Lordships’ House, which received strong support right through to ping-pong. Eventually, we accepted the 72-hour limit compromise proposed by the Government. In her Statement explaining it, the then Home Secretary Theresa May stated that
“the Government are clear that pregnant women should be detained only in exceptional circumstances”,
and that to achieve a balance
“with the need to maintain a robust and workable immigration system … This new safeguard will ensure that detention for pregnant women will be used as a last resort and for very short periods”.—[Official Report, Commons, 18/4/16; col. 12WS.]
In his review, Stephen Shaw cited evidence from the Royal College of Midwives and others but explained that he had
“not sought further evidence that detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children. I take this to be a statement of the obvious”.
At the risk of stating the obvious, it is worth recalling that, during the 2016 debate, a number of noble Lords with medical experience voiced serious concerns about the impact of detention, not just on pregnant women but on their unborn babies. In particular, my noble friend Lord Winston drew attention to the science in which he himself was involved, which
“tells us clearly that the foetus at certain stages during pregnancy is extremely vulnerable to the environment of the mother”.
He warned that if a pregnant woman’s
“stress hormones … are raised, the effect on the foetus may be profound”,
“the Government need to recognise”
their potential responsibility
“for a heritable effect on that child and possibly even on the grandchildren”.—[Official Report, 10/5/16; col. 1667.]
Today, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, the BMA and a range of maternity and refugee organisations have warned of the serious risk of harm that indefinite detention could create for pregnant women and their babies. The Children’s Commissioner has expressed support for this amendment.
The Independent Advisory Panel on Deaths in Custody, which I mentioned earlier, wrote to the Home Secretary on 17 March. Having expressed general concern about the increased risk of suicidality as a result of the extension of indefinite detention, it asked whether the Home Office had carried out a full assessment of the risks linked to the indefinite detention of pregnant women as well as children, and whether it would publish that assessment. More than two months on, no reply has been received. No doubt it will be sent in due course, so perhaps the Minister can provide an answer now and remind the Home Secretary that a proper reply is due to the panel.
In his follow-up review, Shaw noted that the introduction of the time limit had led to a welcome reduction in the number of pregnant women detained, a trend that official figures show has continued; we are now talking about single figures, compared with 99 in 2014. Why are the Government going back on their own policy?
At Second Reading, in response to concerns raised from around the House, the Minister stated that
“to date, there have been very few pregnant women in the small boats”,
yet to exclude them from the detention powers
“would only serve to incentivise the people smugglers to”
“pregnant women … into flimsy boats”.—[Official Report, 10/5/23; col. 1924.]
Similarly, in a Commons Written Answer, the Immigration Minister warned against creating
“perverse incentives for evil people smuggling gangs to target particularly venerable groups”.
Echoing the ECHR memorandum, he further justified the move with reference to “appropriate accommodation” and “healthcare provisions”. That ignores not only the evidence on the inherent stress for pregnant women of being detained, which even the highest-quality healthcare would struggle to mitigate, but the evidence from organisations on the ground that antenatal and other healthcare in immigration detention is often very poor.
The Doctors of the World advisory group of people with lived experience of the asylum system raised particular concerns about standards of nutrition in detention centres for pregnant women and their unborn babies. The equality impact assessment bizarrely argued that because pregnant women could be considered more vulnerable, the removal of restrictions over their detention advances equality of opportunity, because it reduces the risk of their exploitation by people smugglers. This is Alice Through the Looking Glass thinking. Moreover, there is no evidence—that word again—that the 2016 legislation incentivised pregnant women to seek asylum, and the Minister himself acknowledged that there had been very few in the small boats drawn by the prospect of limits on their detention. Are the Government really willing to risk the health of pregnant women and their unborn babies on the basis of a theoretical fear of incentives, or “gaming the system”, as the Minister put it, for which there is no supporting evidence?
I turn to Amendment 70, which would protect children as well as pregnant women against the use of force, be it through the laying of hands on a child or pregnant woman or the use of restraint equipment to effect detention or removal. Again, the rationale for this amendment is the harm that the use of force can do to particularly vulnerable groups, the numbers of whom are likely to increase as the Bill’s removal of detention restrictions becomes law. According to Medical Justice, citing the Royal College of Midwives, pregnant women are at particular risk of developing serious conditions if subjected to the use of force, with implications for their unborn babies. It also cites the Home Office’s own use of force guidance, which acknowledges the serious physical and emotional harm that the use of force might do to children.
Current Home Office guidance does in fact place clear restrictions on the use of force on pregnant women and children. However, this policy was withdrawn for a period and was reinstated only following legal action. In practice, Medical Justice still sees disturbing evidence of the misuse of force in both detention and removals. It also quotes His Majesty’s Chief Inspector of Prisons’ recent report on short-term holding facilities, which gave examples of what it described as disproportionate, unacceptable and inappropriate use of restraint, including handcuffs on children. In his report published yesterday, he noted, depressingly, that:
“Across all three sites we saw no evidence of scrutiny or governance of the use of force or of lessons learned from poor practice”.
Home Office policy states that force should be used on children and young people only where it is necessary to prevent harm to the child or any individual present. Can the Minister give a commitment that this will continue to be policy? I ask because the fact sheet on the Bill and children suggests that force might be used on children if completely necessary, rather than only to prevent harm. Moreover, the fact sheet goes on to state:
“Using force on children in family groups may unfortunately be necessary if a family is resisting removal”.
But the use of force on a child to effect removal is not currently allowed. Will the Minister please explain why it will now be deemed acceptable to use force against children in circumstances where it has not previously been allowed under Home Office policy? This amendment simply puts into the law what is already supposed to be part of government policy, thereby creating a more robust statutory protection for two particularly vulnerable groups. I hope, therefore, that the Government will accept it.
Returning to Amendment 68, I fear that the Government’s obsession with deterrence, such that they intend to make life as grim as possible for all those who seek asylum in the UK through irregular means—not just small boats—regardless of vulnerability, means that they have lost all sight of humanity. I implore the Minister to think again and accept what is really a very small amendment but one that could make all the difference to the lives of pregnant women and their unborn children. I beg to move.
My Lords, it is a great pleasure to follow the noble Baroness, Lady Lister, who has expertly outlined why these amendments are needed. My good friend the right reverend Prelate the Bishop of Gloucester has added her name in support of Amendments 68 and 70, and regrets she is not able to be here to give her support in person. I share her concern about the impact of detention on pregnant women in particular, impact which we know is considerable. Others will rightly draw attention to the impact on children, and the suggestion of the use of force against either group is unspeakable. His Majesty’s Inspectorate of Prisons advises that there
“is no safe way to use force against a pregnant woman, and to initiate it for the purpose of removal is to take an unacceptable risk”.
I turn now to Amendment 68, which is a preservation amendment. This simply asks that the Government maintain the status quo. In 2016, the Immigration Act introduced a 72-hour time limit on pregnant women’s detention, which saw the numbers detained drop from 99 in 2014 to just seven in 2021. It is alarming to think that we may see numbers rise, and the consequences are disturbing. According to research by Women for Refugee Women,
“women seeking asylum who are pregnant are an extremely vulnerable group. Many have experienced trauma such as rape, trafficking and torture, and have significant physical and mental health issues”.
I appeal to the Minister to consider also the well-being of the unborn child involved. The Royal College of Midwives has said:
“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.
Antenatal care and support provided to women who are detained has often fallen short of the care normally available to pregnant women.
Research by Medical Justice found that in Yarl’s Wood, women often missed antenatal appointments. Some had no ultrasound scans while detained, and women did not have direct access to a midwife and could not request visits. In recent years we have seen the devastating consequences of holding pregnant women in prisons. These facilities, including detention centres, are on the whole not set up to provide the necessary health and welfare oversight. This violates women’s dignity and puts lives at risk. The indefinite detention of pregnant migrant women, who are often extremely vulnerable and the victims of abuse and trafficking, is a very worrying and regressive move. The implication that force may be used against them, and against children, is beyond words. I hope wholeheartedly that the Committee supports these amendments and that His Majesty’s Government give them the consideration they so justly merit.
I thank noble Baroness, Lady Lister, for putting forward Amendments 68 and 70, to which I have added my name. I also support Amendment 76A tabled by the noble Lord, Lord Scriven. Let me address Amendments 68 and 76A first.
I made a strong case at Second Reading as to why pregnant women should not be detained. I followed this up with a letter to the Minister. In the letter, which I sent on 19 May, I acknowledged that the Minister has a difficult job in trying to tackle illegal migration but inquired about the following points. I asked about what the Minister had said in his opening comments at Second Reading. He said:
“More than 45,000 people came here by small boat last year. The overwhelming majority of arrivals were adult males under the age of 40.”—[Official Report, 10/5/23; col. 1781.]
This suggests that there were only a small number of women. However, I asked for clarification to understand fully the numbers. If the number was indeed small, then the number of pregnant women would have been negligible. I therefore asked also for evidence of how many pregnant women had entered the UK illegally and whether there had been sharp rise in the figures. I asked this because if not detaining pregnant women was going to act as a magnet, we would have seen the sharp rise suggested by the Government. I chased up a response yesterday and was informed that a draft letter has been prepared and is going through final checks, and I will be receiving it soon. I wonder whether there could be a response today to my points.
It seems obvious that there are probably only a few pregnant migrant women coming to the UK every year, but of course I am happy to be corrected on that point. If the Government are trying to make a case that not detaining them would act as an incentive for more smugglers to bring pregnant women into the country or act as a magnet, that does not stack up. What assessment has been made to arrive at that conclusion?
I also cannot imagine what safety risks a few pregnant women will pose if they are housed in the community, so I ask for clarification on the following points. How would pregnant migrant women living in the community make us less safe? It would definitely make them safer. Why is this Government’s response to pregnant migrant women so harsh, disproportionate and cruel?
Detention centres are unhealthy and unsafe environments for pregnant women, as I mentioned at Second Reading. I asked Women for Refugee Women for cases of pregnant migrant women who had been detained prior to 2016. When I read the cases sent to me, I noted the following commonalities. These women were not believed when they said they were not feeling well. They had delayed maternity care. Miscarriage came up, as did poor nutrition. They were given medication without really knowing whether it was suitable for pregnant women. Poor mental health, self-harm, flashbacks and PTSD were mentioned. All of this also impacts unborn children and newborns.
Given the vulnerability of pregnant women and children, I support Amendment 70. Force should never be used to effect detention or for removal. Any use of force, even if it is considered mild, will risk harm to the mother and unborn child because each pregnancy is unique, and there may be pregnancy complications that are not apparent. The use of force risks miscarriage, waters breaking and the risk of infection, premature labour, stillbirth and trauma. It goes without saying that to safeguard and protect children from harm, force should also not be used on them. The only time reasonable force can be justified is to prevent harm to the person themselves or to another person. It should not be done for the purposes of detention and removal.
Your Lordships may be wondering why I am so worried about the use of force. The use of force in law enforcement could potentially include handcuffing, the use of a baton, the use of dogs, the use of irritant spray, body restraints, spit hoods, Tasers, and aiming firearms. The Government have a duty to safeguard the most vulnerable in society, so I hope they carefully listen to our concerns today.
Good morning, my Lords. I hope all Members of the Committee—it is a large group; larger than usual, for which I give credit to the Committee and to Members opposite in particular—will remember 8 June 2023. I will always remember where I was this morning, and I hope that other noble Lords will too, because this was the morning when we began debating whether detention and force are appropriate for pregnant women and small children.
I am very privileged to follow the noble Baroness, Lady Gohir, with her various well-put medical and other reasons why it is not a good idea to use force against pregnant women. It seems that this is now necessary in the context of debating amendments to the Bill. It would seem that there is the edge of depravity, and then there is the abyss. In the last group, we talked about detention. We now take it to its further conclusion, because in the end, a consequence of detention will sometimes be force. It is as well that we confront that, and confront it in the case of both children and, in this example, pregnant women.
Whatever our views about the basic policy here, I rather agree with the noble Baronesses in the previous group and with the speeches we have just heard that it would be appropriate for the Government to think again about this group of vulnerable people in particular, considering all the reasons that were given. Surely, whatever is said about deterrents and so on, there can be some concession to humanity, please, in relation to children and pregnant women. That will not hurt the signalling and the deterrents and so on. We cannot go on like this—and I do not just mean that we cannot go on at 12.20 am. When we were younger, hey, we used to go on all night, so we can go on all night in here; this is how we get our kicks in the Committee. However, we cannot go on degrading ourselves and our values by suggesting that there is no difference between a child or a pregnant woman and an adult, and that everybody is illegal. We need to make some restraints, just for decency, for our own sake.
My Lords, it is ironic that we are talking about detention when the Government Front Bench is trying to detain us here. What we are trying to do is our job of sensibly and calmly dealing with a Bill that has huge potential for the liberty and lives of some of the most vulnerable people in the world. It is absolutely disgraceful that, when the noble Baroness, Lady Chakrabarti, was talking about staying here all night, some on the Benches opposite, including the Government Chief Whip, thought it was funny and amusing. It is not funny and amusing to be told that we have to stay here until goodness knows what time to do our job because the Government Benches wish to rush this through at any cost as a red-wall, red-meat Bill, rather than allowing us the serious job that we have to do as Members of this House. It is an absolute disgrace.
Now that I have got that off my chest, I will speak to my Amendment 76A. It is not a probing amendment but a clear amendment that women who are pregnant should not be held in immigration detention. I see no reason for that. The noble Baroness, Lady Lister, pointed out what the equality impact assessment says on pregnancy and maternity—it is absolutely enlightening:
“Data on pregnancy and maternity in relation to people who enter the UK illegally is not available”.
It is not available—there is no data. They do not know the numbers and therefore they do not know what the impact is. It continues,
“it is therefore difficult to categorically establish whether there will be indirect discrimination”.
It is not just hard to determine whether there is indirect discrimination; because of the lack of figures it is absolutely impossible to determine what the effect will be of the primary part of this legislation and whether it will act as a deterrent.
I am sure that that is what the Minister is going to tell us: that there is no data or evidence available. As the Minister said on Monday, on all the proposals:
“Obviously, as these provisions are not in force, there is no evidence of the impact of these measures. The noble Lord appears to require me to look into a crystal ball”.—[Official Report, 05/6/23; col. 1175.]
When the Minister gets up at the Dispatch Box, if he trots out the ridiculous statement that locking up pregnant women will somehow act as a major deterrent to people coming here, both the equality impact assessment and what the noble Lord, Lord Murray, said on Monday show that that is not the case.
It is for those reasons—the lack of evidence, the lack of understanding of what the impact will be, and, as other noble Lords have said in the debate, the impact it will have on both the pregnant woman and the child—I believe there is no case in a modern, civilised country to have an immigration policy position of putting pregnant women in detention.
My Lords, in 1979, when I was a young Member of another place, the then Conservative Government regularly kept us there all night. When you are younger, you are quite happy to do that but I suspect it would be better—and knowing how reasonable the Leader of the House and the Government Chief Whip are—if we could schedule our proceedings to include at least one extra day to consider this very important Bill, but also maybe to have a morning sitting if necessary to enable those of us who are not quite as young as we once were to ensure that we can focus properly on these very important questions.
I made common cause with the noble Baroness, Lady Lister, in 2016 and it was to the credit of your Lordships’ House that, after some ping-pong and debate between both Houses, we were able to ensure that the law was changed to introduce these restrictions on the detention of pregnant women. Similarly, the decisions that were taken about children were to the credit of this House. To see these things being rolled back brings no credit to any of us and I really hope that the Minister, when he goes away from our proceedings tonight and talks again to his officials and to the Secretary of State, will recognise the strength of feeling that has been expressed in the debate already, and that the very important points that my noble friend Lady Gohir made in her excellent speech will be taken into account.
The detention of pregnant women is currently restricted, as we have heard, to 72 hours. That limit would be specifically disapplied in respect of those detained because they are or may be subject to the Clause 2 removal duty. As the Bill stands, a pregnant woman could be detained for any period—I repeat: any period—considered “reasonably necessary”. Prior to 2016, the noble Baroness, Lady Lister, and I argued that it was unconscionable that there was no time limit on immigration detention for pregnant women, leading to some of them being detained for weeks, even months, on end. That, inevitably, put pregnant women and their unborn babies at risk.
The Royal College of Midwives says:
“The detention of pregnant asylum seekers increases the likelihood of stress, which can risk the health of the unborn baby”.
Stephen Shaw, the former Prisons and Probation Ombudsman, mentioned earlier by the noble Baroness, Lady Lister, was emphatic. He said:
“That detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children … I take to be a statement of the obvious”.
Back in 2016, Medical Justice told Parliament that the level of care for pregnant women
“falls short of NHS equivalence and the National Institute for Health and Care Excellence (NICE) standards”.
Are we seriously going to turn the clock back to those bleak times? Some of the women who will be affected will have experienced barbaric treatment, including rape, torture and trafficking. To forcibly return such women will be traumatic beyond belief for them. It will endanger their lives and the lives of the babies in their wombs, and we have no business doing it. That is why I support Amendment 68, and even at this late hour I hope that many of your Lordships on all sides of the Committee will support the noble Baroness, Lady Lister.
My Lords, I begin with an apology to the noble Lord, Lord Scriven, because, had I spotted Amendment 76A, I would certainly have attached my name to it. I judge from its numbering that it was a relatively late arrival. Having addressed the detention of pregnant refugees at Second Reading, I saw that Amendments 68 and 70 had full, cross-party and non-party support—including from the Lords spiritual—so I could not attach my name to them. I certainly would have done so otherwise. The case for all these amendments—certainly for not making things any worse than they are now—has already been overwhelmingly made.
The noble Baroness, Lady Chakrabarti, took us gazing into the abyss; I am afraid that I am going to look even further into the abyss. I have specific questions for the Minister. Throughout these many long hours of debate, we have heard again and again that the Government are determined to remove people with great rapidity—that is, that they are going to detain them for just a few days and then remove them. We have all heard the expressions of doubt about that. I want to ask some questions about the Government’s intentions for the removal of pregnant refugees.
I have looked at the NHS guidance on travelling when pregnant; for the assistance of the Minister, the website is fitfortravel.nhs.uk. It says that flying during the first 12 weeks of pregnancy is risky because of the risk of miscarriage. It says that most commercial airlines accept pregnant travellers up to 36 weeks if it is a single pregnancy or up to 32 weeks if it is a multiple pregnancy if the pregnancy is uncomplicated and the pregnant person is in good health. This advice also notes that, in the post-partum period, the risk of deep vein thrombosis is significantly elevated. My question for the Minister, because I think that it needs to be raised in this context, is this: is it the Government’s intention to remove, presumably by flying, pregnant refugees, risking their health and that of their unborn babies?
My Lords, I have co-signed Amendment 68, which, as we have heard, would keep the existing protection of a 72-hour time limit on the detention of pregnant women for immigration purposes. I appreciate that the Minister will make a similar closing speech to the one for the previous group, but I want to make some different, practical points on pregnant women specifically. I believe that there is a case for special treatment here.
In our debates on previous groups, my noble friend the Minister warned against introducing loopholes that could be exploited. I do not believe that that will be the case here. This is a narrow amendment. It does not seek to exempt pregnant women from the other provisions in this Bill, such as the duty to remove. It simply ensures that their and their babies’ health will not be put at risk by being detained with no time limit.
There is no evidence to support the suggestion that maintaining the time limit will result in more pregnant women crossing the channel. Women’s groups and experts working in this area do not believe that it will increase the number of pregnant women making these journeys, so I do not believe that there will be an incentive effect. I am not really clear on the reasoning behind that argument. I do not think anyone is suggesting that this will incentivise women to get pregnant so that they can claim asylum. Nor will women take the decision to put themselves and their unborn baby at risk of a dangerous crossing and eventual deportation just because they will not be detained on arrival for more than 72 hours.
If the broader measures in the Bill work as the Government intend and people are swiftly removed to another country, we will not see people traffickers seeking out pregnant women to make the crossing, exploiting a loophole, because they will not be exempt from removal. The risk of the very small number of people on whom this will have an impact absconding is very low, given the desire and need for healthcare when pregnant. Further, where there is a real risk of absconding, Section 60 allows for detention to be extended with ministerial authorisation.
Despite the same arguments being made when this issue was debated in 2016, the 72-hour time limit placed on pregnant women’s detention has not had an incentivising effect on women claiming asylum. Unfortunately, the Home Office does not collect specific statistics on the number of pregnant women claiming asylum, but the number of women claiming asylum annually prior to the time limit was about 7,000. This figure has stayed broadly the same post time limit; there has not been any increase.
Secondly, there is the argument that there will be sufficient protection for pregnant women thanks to existing or updated guidance. I do not believe that that will be the case either. The existing “adults at risk” level 3 does provide some guidance but, as we saw before the Immigration Act 2016, with just guidance, pregnant women were being detained on a far more routine basis than they should be.
During the passage of the Immigration Act 2016, the original proposition was for pregnant women to be protected through guidance but ultimately it was recognised that that just would not be robust enough, and we saw the introduction of the time limit. I appreciate what my noble friend the Minister said in the previous group about updating the guidance following this Bill, but the gap between policy and practice was really only closed through the introduction of a clear time limit in primary legislation which reduced the elasticity of or room for interpretation of guidance. This protection should remain in primary legislation.
There is widespread support for this amendment from across this House, from the other place and from organisations such as the End Violence Against Women coalition, which is made up of 143 specialist women’s support services and experts, from Refuge, the largest domestic abuse organisation in the UK, from medical professionals, and from the Royal College of Obstetricians and Gynaecologists. I will not detain your Lordships by reading out their supporter quotes but, believe me, they are very supportive. I am happy to share them at a more appropriate time.
This is a narrow amendment that would impact just a small number of vulnerable women and keep the protection against detention that pregnant women currently have. It would not create loopholes as it would not exempt women from the duty to remove. The known negative impacts of detention on pregnant women outweigh the un-evidenced—and in my view, incorrect—argument that this will incentivise women to cross in small boats.
This amendment is about protecting women, not putting them at further risk. It would maintain current protections that have been widely acknowledged as working well. If my noble friend the Minister still believes the current time limit should be removed, I would welcome an explanation of the specific reasons for that. I ask him to take into account the widespread support for this narrow amendment and to consider its merits ahead of Report.
My Lords, this has been another interesting debate in which there has been one side only, and we face a series of debates where we are looking at fact versus forecasting. All of the speakers who have entered this debate in this short and very narrow area of work have been clear about the issues, which are evidenced—the health and well-being of pregnant women, the effect on unborn children, the dangers of restraint, which have been very well explained.
We are in exactly the same position as we were on the last group. We are asked to make a decision in this Committee based on unevidenced forecasting—in fact, we heard the Minister say earlier that he cannot be expected to look into a crystal ball. That is exactly what the Government are doing here, against all the evidence.
If you think about the number of organisations that have been referred to in this short debate, we are not talking about a small, narrow area of influence; we are talking about huge numbers of organisations representing women throughout this country, human rights and every other sphere you can imagine, believing that this is the wrong way to go. It is the wrong way because we do not have any evidence that it will do the job the Government want it to do.
The Government should stop their crystal ball-gazing to which they directed our attention earlier and concentrate on the evidence they have given. If they cannot provide the evidence themselves, listen to the evidence of the world around us.
My Lords, one of the major items in the Bill is the extension of the 72-hour detention of pregnant women. Research carried out in Yarl’s Wood in 2014 found women in detention there often missed antenatal appointments, had no ultrasound and did not have direct access to a midwife.
In a government-commissioned review of immigration detention in 2016, Sir Stephen Shaw stated that
“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn child and I take this to be a statement of the obvious”.
That point was made by the noble Lord, Lord Alton of Liverpool. It was after this that the 72-hour rule was implemented. It was done for a reason, and to undo it would put women and unborn children at risk of serious harm. The actual number of pregnant women in detention is low. There were nine in 2022, so I would argue—and so, I believe, would other noble Lords who have taken part in this debate—that we are talking about a low number of children. The Government’s argument that somehow, the amendments would provide an incentive are difficult to understand.
However, to the women themselves, who are pregnant, it makes a huge difference. That is accepted by experts and by every lobby group that has written to noble Lords regarding this narrow amendment.
If I was to give a prize for the best speech of this group I would give it to the noble Baroness, Lady Sugg. Her speech was very cogent and well argued. On the other hand, the prize for the most impactful speech would go to my noble friend Lady Lister, who gave a powerful and angry speech. She was also very angry that we are having this debate at this time of the morning. I hope that the Minister will hear the unanimity of view that has been expressed by all noble Lords taking part in this short debate.
My Lords, this group deals with the detention of pregnant women and the use of reasonable force to effect the detention and removal of children and pregnant women.
Amendments 68 and 76A deal with the detention of pregnant women. Before getting into the specifics, it is worth briefly reiterating some general points made by my noble friend Lord Murray when he responded to the previous group. Our aim is to ensure that no one is held in detention for longer than is absolutely necessary to effect their removal from the United Kingdom. The scheme is designed to be operated quickly and fairly, but holding people in detention is necessary to ensure that they are successfully removed under the scheme. The duty on the Home Secretary to make arrangements for the removal of all illegal entrants, save unaccompanied children, back to their home country or to a safe third country will, we calculate, send a clear message that vulnerable individuals, including pregnant women, cannot be exploited by the people smugglers facilitating their passage across the channel in small boats on the false promise of starting a new life in the United Kingdom. The only way to come to the United Kingdom for protection will be through safe and legal routes. This will take power out of the hands of the criminal gangs and protect vulnerable people.
I am happy to repeat for the benefit of the noble Baronesses, Lady Lister of Burtersett and Lady Chakrabarti, the noble Lord, Lord Scriven, and my noble friend Lady Sugg that we must not create incentives for people-smuggling gangs to target pregnant women or provide opportunities for people to exploit any loopholes. I assure the Committee that pregnant women who have arrived illegally will not be removed from the United Kingdom when, based on medical assessments, they are not fit to travel. I offer that assurance to the noble Baroness, Lady Bennett of Manor Castle.
It will be in Hansard, the official record.
The document from which the noble Baroness, Lady Bennett, quoted, referring to guidance from the NHS website, provides that, with the proper precautions, most women can travel safely well into their pregnancy. However, in any event, we will remove only persons who are fit to travel.
There has never been a complete bar on the detention and/or the removal of pregnant women, such as Amendment 76A seeks to provide. The noble Lord, Lord Alton of Liverpool, referred correctly to the situation as presently advised, with a 72-hour period and a seven-day maximum detention thereafter. In answer to the noble Lord, the right reverend Prelate the Bishop of Southwark, and other noble Lords, that will continue to apply to women who have not arrived illegally on these shores.
Under the Bill, detention is not automatic. The Bill provides power to detain, and the appropriateness of detention will be considered on a case-by-case basis. We expect that a woman who is in the later stages of her pregnancy and who cannot be removed in the short term would not be detained, but instead released on immigration bail. That matter would of course be assessed by the body hearing the application.
As my noble friend Lord Murray of Blidworth advised the Committee earlier, and in relation to points raised by my noble friend Lady Sugg, we already operate our adults at risk policy for women who are detained in the earlier stages of pregnancy, which recognises pregnant women as a particular vulnerable group. For all cases in which a pregnant woman is being detained for removal, the fact of her pregnancy will automatically be regarded as amounting to level 3 evidence under the adults at risk policy, and the pregnancy will be afforded significant weight when assessing the risk of harm in detention. This means that a woman known to be pregnant should be detained only where the immigration control factors that apply in her case outweigh the evidence of her vulnerability—in this case, the evidence of her pregnancy. Such control factors at level 3 are where removal has been set for a date in the immediate future or there are public protection concerns. While in detention, pregnant women will receive appropriate healthcare provision.
The noble Baroness, Lady Gohir, referred to the letter she has been promised. I am assured that it is in the process of being drafted. It will proceed under the name of my noble friend Lord Murray of Blidworth and will be with her soon.
Along with all other detained persons, it will be open to pregnant women to apply to the First-tier Tribunal for immigration bail after 28 days and it would be open to the Home Secretary to grant such bail at any time. An application for a writ of habeas corpus may be made at any point once an individual is detained. An equivalent procedure operates in Scotland by means of an application for an order for suspension and liberation to the Court of Session.
Amendment 70 would, in effect, prohibit the use of reasonable force to effect the detention or removal of either children or pregnant women. While I recognise the sentiment behind this amendment, we need to recognise that using control and restraint on children in family groups or pregnant women may, unfortunately, be necessary if a family is resisting removal. At the moment, our policy regarding children and pregnant women is that reasonable force may be used to prevent harm to individuals and others. However, we judge it not right that a family can prevent their lawful removal from the United Kingdom simply by leaving a room or by refusing to walk to the appropriate transport.
At this point, it is worth while expanding on what we mean by the use of reasonable force. The expression is fully and widely understood within the legal profession. I understand the concerns being raised here and it may help if I offer more explanation of what is meant by that expression or the use of control and restraint on pregnant women and children. It may involve no more than placing hands on the person; a typical example is what is known as a guiding hold, which may be used safely to escort a person by placing one hand over their wrist and the other on their upper arm.
It is and will continue to be the case that the use of force must be reasonable in the circumstances, must be the minimum amount required, must be an absolute necessity and must be proportionate. Officers are therefore trained to use it as a last resort only when other methods of engagement are not viable.
Again, the noble Baroness, Lady Gohir, in her submission to the Committee, described forms of the use of force which are extreme in comparison with what would be deployed in foreseeable circumstances. If I may, it is somewhat analogous to the discussions earlier on in the context of the detention provisions: we heard what your Lordships had to say about the conscription—I seem to recollect that that was the expression—of shipmasters, train managers and others into the service of the Home Secretary acting in these capacities. It was worth while for my noble friend Lord Murray of Blidworth to remind the Committee that detention can be no more than simply refusing to open doors. Force need not equate with violence. But we judge that it is appropriate that persons should not be able to thwart the immigration system simply by refusing to co-operate.
Where we are reviewing our policies on control and restraint, we will pay particular attention to ensuring that appropriate safeguards are in place, along with suitable training, officer accountability and reporting. Again, I think it is worth mentioning that these control and restraint techniques are in a constant process of review and evaluation, not only by police officers but also by others such as mental health nurses, prison officers, immigration officers and officials such as will receive such training for the purposes of the Bill. We will be consulting the children’s commissioners regarding changes to our current policy.
I conclude by reminding the Committee that the challenge we face in addressing the current levels of illegal entry into the United Kingdom calls for a new and radical approach. That means having to re-evaluate some legislation passed in recent years with the best of intentions. The challenges that we face now are different in kind and scale since Section 60 of the Immigration Act was enacted. Of course, pregnant women must be properly cared for while they are in detention and will be detained only in suitable accommodation with appropriate healthcare provision, but the fact that they are pregnant cannot of itself act as a bar on detention under the Bill. On that basis, I invite the noble Baroness to withdraw her amendment.
My Lords, first of all, I thank all noble Lords who have spoken. All, apart from the Minister, spoke in support of the amendment. I am very grateful to them for staying until this ungodly hour and not allowing the Government to chase them off, in effect, through tiredness. I know that others have not spoken, but I have felt their support anyway. People are nodding, and I thank them. I know that others who cannot stay this late have had to leave.
My noble friend Lord Ponsonby remarked on my anger that we are discussing this at such a ridiculous time. Yes, I am angry about that, but I am also angry because, as the noble Lord, Lord Alton, set out very clearly, we are having to refight the battles that we fought in 2016 at some length in this House and won. It is so depressing to have to put the same arguments yet again, because the Government and Theresa May accepted them then, and we reached a compromise. That is why, although in my heart I agree with the noble Lord, Lord Scriven, because that is what I argued for in 2016, with my head I say that we have to just try to get back to where we were. There is no point trying to go further, I am afraid, although I accept what he said in principle.
I should also note that there are a whole lot of other people here who probably would not normally sit in on our Committee proceedings, and I hope they have learned something. I hope they have learned through having to listen to what we are doing to pregnant women—what their Government are doing to pregnant women. I hope they will think about it. Some of their colleagues on the government Benches might have words, perhaps, afterwards, because as my noble friend said, the noble Baroness, Lady Sugg, made a very powerful case.
I thank the Minister for his response, but it was utterly disappointing. He utterly failed to engage with what his noble friend said about the vacuity of the incentives argument, and he had no other argument to put. There is no case, really, because, as she made clear, that argument does not stand up. It was very depressing and disappointing that there was no case.
I am also disappointed that a number of the questions I asked were not answered. I am not going to press them now— it is nearly 1 o’clock in the morning.
It is perfectly acceptable. I was just going to suggest that the Minister do that. I do not blame him at all, because I do not imagine he is that keen on arguing this out at 1 o’clock in the morning either.
We will return to this at Report—we have to. As a number of noble Lords said, this is a narrow amendment that does not drive a coach and horses through the whole Bill, much as I hate the Bill. It would not cost the Government anything to concede to this amendment before Report, rather than forcing us to come back then and go through the whole thing again, voting for the health of pregnant women and their babies. For now, however, I beg leave to withdraw the amendment.
Amendment 68 withdrawn.
Amendment 69 not moved.
Clause 10 agreed.
Amendments 70 and 70A not moved.
Clause 11: Period for which persons may be detained
71: Clause 11, page 17, leave out lines 32 to 36
Member's explanatory statement
This amendment seeks to remove the possibility that the Secretary of State may extend the period of detention indefinitely in the circumstances referred to in this subsection.
My Lords, I have put my name to Amendments 71 and 72, tabled by the noble and learned Lord, Lord Hope of Craighead. These amendments are designed to probe the meaning of two similar subclauses. I can almost taste the enthusiasm. They could have been multiplied because similar wording appears in three other parts of the clause. I said that I would deal with the noble Lord’s points on Hardial Singh on another day; little did I realise how soon that day would come, but I will do so.
Clause 11 is described in the Explanatory Notes as
“codifying, in part, the Hardial Singh principles”.
However, the Constitution Committee, on which I have the honour to serve, said in paragraph 13 of its report that it represents a departure from that jurisprudence in at least one important respect: by making the Secretary of State herself rather than the courts the judge of whether a period of time is reasonable.
On that last point, I will read two sentences from the judgment of Lord Justice Keene in the Queen on the application of A against the Secretary of State for the Home Department in 2007:
“It is to my mind a remarkable proposition that the courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Classically the courts of this country have intervened by means of habeas corpus and other remedies to ensure that the detention of a person is lawful, and where such detention is only lawful when it endures for a reasonable period, it must be for the court itself to determine whether such a reasonable period has been exceeded.”
I do not need to ask the Minister whether the intention of the Bill is to reverse that authoritative statement of the separation of powers in our constitution because the Explanatory Notes make it perfectly clear at paragraph 94 that it is. The purpose of the clause, it would seem—and this is a striking application of the logic of deterrence—is to allow detention to endure in circumstances when, in the objective view of a court, it would be unreasonable.
I have a short question for the Minister and a longer one. First, is it right that this power, which the Bar Council describes as an “emergency wartime-style power”, can be applied to all immigration detention, including those who entered lawfully as visitors or via intracompany transfers? I had not appreciated that until I read the Bar Council’s briefing. I would be grateful if the Minister could clarify. Regarding the longer question, it is lucky that we are debating at 1 in the morning, since minds need to be alert for this one. Can the Minister explain the intended effect of the subclauses which are subject to Amendments 71 and 72, tabled by the noble and learned Lord, Lord Hope, and their equivalents elsewhere in the clause?
The clearest example, because it does not depend on cross-references and can be understood from the Bill, is that Clause 11(6)(3) appears to say that a person may be detained pending a decision whether to remove even if there is nothing to prevent that decision being made. Does that mean that a person may be detained even if everything is in place for a decision not to remove them? Is the Secretary of State deemed to have acted reasonably by continuing detention in those circumstances? If the Minister can explain the point of these subclauses, I will be grateful, because I am genuinely, not forensically, baffled.
Finally, since the night is yet young, I hope that I may be permitted a short comparison. Noble Lords who have been here longer than me will remember the issue of how long persons arrested on suspicion of terrorism could be detained before a charging decision. The period used to be 28 days. Attempts by Labour Governments to extend that period, first to 90 days and then to 42 days, were beaten back in this House. The coalition Government eventually reduced the period to 14 days, which is where it stands today, although repeated visits to the court, initially at intervals of 48 hours, are required by any police force wishing to detain someone for anything like that period. The law is full of anomalies but is it not remarkable that those who are not suspected of terrorism but may be fleeing from terrorism can be held for far longer periods than this, with the reasonableness of that period being judged by the Executive and with the possibility of applying to a court being specifically excluded under Clause 12 until 28 days have passed?
My Lords, I must congratulate the noble Lord, Lord Anderson of Ipswich, on such a clear and articulate tour de force, explaining a very important legal principle at five past 1 in the morning. His simple and clear speech poses a question to the Minister. Will the question of what is a reasonable period of detention now be the preserve of the Government and Home Secretary of the day, or will we keep with our traditions in this country? I do not mean this new-fangled human rights stuff; not this international stuff that some noble Lords in the Committee might have an aversion to, but principles that go back to 1305, give or take—some would say earlier. This is a contentious matter in legal circles, and no doubt someone will have a pop at me, but I think that we can say 1305 with some certainty when we are talking about habeas corpus.
The Hardial Singh principle makes it clear that this applies to migrant people too—they should be able to challenge the reasonableness and lawfulness of their detention in a court. It is not up to just the Home Secretary, not even for the purposes of deterrence, to say that somebody should be subject to indefinite detention. It was of course the legendary English jurist and Conservative politician William Blackstone who wrote so powerfully about this writ or order, requiring that a person’s detention be accounted for in a court. That was in 1305, but we believe that similar procedural writs were probably used even earlier. The noble Lord, Lord Anderson, will correct me, but there has been some discussion that some of these writs were available in English courts even before 1305.
This is not 1965; it is not hippie stuff. This is not 1945, post-war stuff. This is 1305. This is such an important principle that informed constitutions and bills of rights all over the world, when people had their liberation struggles. Of course, it then informed the post-war human rights framework, but it is not to be punished for that. If there are rights nationalists in the Committee, who like English rights or British rights but do not like international rights, that is fine: that people should not be indefinitely detained at the behest of the Home Secretary has an old and British enough provenance. The reasonableness of their detention for the purposes of effecting their removal, in this case, really ought to be capable of being tested and ultimately decided in a court.
For the clarity of the amendments and for their exposition, particularly under these circumstances, I am incredibly grateful to the noble Lord, Lord Anderson of Ipswich.
My Lords, it is a great pleasure to follow the noble Baroness, Lady Chakrabarti. Members of your Lordships’ Committee who are dedicatedly glued to their third Marshalled List of amendments to the Illegal Migration Bill will, I am sure, have noted that my noble friend Lady Jones of Moulsecoomb has attached her name to Amendments 71 and 72, both of which have been very ably introduced by the noble Lord, Lord Anderson of Ipswich. I have to say that I was extremely pleased to see the noble Lord in his place, as it did not fall to me to try to do that job.
That makes me reflect that we are missing two of the key people whose names are on these amendments—the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Blunkett. In our debates on the Bill, we have been discussing impact assessments and equality assessments a great deal. There is an extreme inequality in the way in which so many Members of your Lordships’ House have been excluded from amendments in which they clearly have a very strong interest by the ridiculous hour at which we are now debating.
However, in one way my noble friend Lady Jones and I are in our normal position, because my noble friend is a lark and I am an owl. Normally, we hand over around the late evening when my noble friend goes home and I pick up from her. The way we are going, we will be doing a morning handover for the first time, because my noble friend will be awake in about four hours, so perhaps we will hand over then.
I must admit that 1 am is probably not the ideal time to fully bone up on Hardial Singh principles, because my noble friend is much more of a specialist in this area of law than I am. So I was thinking about how I could usefully add to this debate. From my understanding and from reading the Explanatory Notes, it seems to me that the key sentence is:
“If the Secretary of State does not consider that the examination, decision, removal or directions will be carried out, made or given within a reasonable period of time, the person may be detained for a further period”.
So the question I put to the Minister from looking at that is, how long do the Government really think this can go on for? We have incredibly overcrowded prisons with an increasing need for provision for old-age pensioners. Are we going to see the same thing in immigration detention? Is that really what the Government perceive as likely?
The other point that I want to make is a comparative one. If we look around other parts of Europe, we see that, already, even before the recent and planned extensions, we have one of the largest immigration detention suites in Europe. Why is that? France has a maximum of 32 days of immigration detention; in Germany, it is a sliding scale of six weeks, six months, or in extreme cases 18 months; in Hungary, it is six months. I know that the Government do not really like comparisons with Europe, but are we not putting ourselves as an utter global outlier through these provisions, unless they are changed along the lines of these amendments?
My Lords, I will come to my Amendment 71A in a moment; I will also speak to the opposition to the clause standing part.
I am grateful to the noble Lord, Lord Anderson, for enlightening us on the Hardial Singh principles and for reinforcing the view, expressed by lawyers in all sorts of documents that have come to us, that this clause increases the power of the Government and reduces the power of the courts, and that the balance of power between the three branches of our constitution is therefore being altered by this clause.
The first stage is quite clear: Clause 11 overturns the long-established common law principle that it is for the court to decide for itself whether the detention of a person for the purposes of removal is for a period that is reasonable. That is absolutely critical to prevent people, including the most vulnerable, languishing in detention and having their freedoms curtailed unjustifiably. The United Kingdom Government have always justified not having a time limit on detention because of the involvement of the courts. This is being done away with, and we will now see that detention for a short period pending removal may be much less likely. Again, the poor treatment of people is being used as a deterrent to others, and their rights are being infringed in the process. We believe on these Benches that the courts must have effective oversight. We cannot allow the Government’s power of administrative detention to be expanded. The balance is going in the wrong direction.
The purpose of immigration detention is to facilitate removal, and there is no evidence that these changes are needed to improve removals. They will mean that the Home Office will be able to detain people where there is a barrier to removal or where they are not pursuing removal as diligently as they could be. Given the lack of returns agreements in place—we have just one—this is likely to result in a growing number of people being detained indefinitely. That is hugely concerning. It would appear that it creates specific powers that people can be detained for longer than the current limited grace period after release has been decided upon: the Home Secretary will be able to detain for a period of time “reasonably necessary” to enable release.
This leads me to my amendment’s point. I would like to probe the Government to find out how and why they can marry the obligations under Article 5 of the ECHR with Clause 11. In its legal observations on the Bill, the UNHCR notes:
“Detention for the purpose of making arrangement for release … is arguably not permissible under Article 5 ECHR”.
How do the Government marry that view with the obligations under Article 5? Has the UNHCR, in their view, got it wrong? If so, what are their reasons for thinking this?
The period for which people will be detained will therefore be very uncertain. This uncertainty has profound mental health implications, including increasing feelings of hopelessness, which is one of the most prominent risk factors linked to suicide. The extended use of detention in such circumstances could leave tens of thousands of people in a long-term state of uncertainty and at an increased risk of suicide.
Of course, Clause 11 applies to all forms of detention, not just for those who arrived irregularly. For example, it is intended to allow a software engineer who overstayed her visa to be detained for far longer than a suspected terrorist, with far less judicial oversight. That is particularly concerning given how extraordinarily complex the Immigration Rules are anyway.
In line with the Hardial Singh principle, it should be for the courts to assess whether the period of detention is reasonable, and habeas corpus is insufficient as a defence because it is a defence only about whether the detention is lawful, and clearly this Bill would make it lawful. That is the problem about habeas corpus; it is an insufficient tool to deal with these powers. Where we are detaining people is also critical. Judicial oversight must not be purely in the hands of the Secretary of State. I believe that the power in Clause 11 has taken the relationship between the three parts of our constitution in the wrong direction.
My Lords, I thank the noble Lord, Lord Anderson, for his introduction to Amendment 71. It raises a hugely significant point of principle for us in the consideration of the Bill, as did the noble Lord, Lord German, with his point about Clause 11.
I am going to spend a couple of minutes reiterating this because I think it is important. As we all know, the Illegal Migration Bill basically means that everybody who arrives irregularly will be detained, without exception. Therefore, the rules around that detention are paramount. The noble Lord, Lord Anderson, reminded us that Clause 11 deals with the detention period. In the Explanatory Notes, it is clear that it is the Home Secretary, rather than the courts, who will determine what is a reasonable period. I suggest that is a phenomenal digression from normal jurisprudence in this country. I am not a lawyer or a judge, but one of the bulwarks of our constitution and our democracy has always been that it is for the courts to determine reasonableness, not for politicians or Home Secretaries.
The truth of it is that, across the world, we criticise Governments and politicians for interfering and making judicial decisions. We quite rightly do that, for obvious reasons, as the noble Lords, Lord Anderson and Lord German, have just made clear. But it is the Home Secretary who will determine what is a reasonable period for somebody subject to the Illegal Migration Bill to be kept in detention. I find that quite astonishing. The noble Baroness, Lady Bennett, quite rightly and half jokingly, said that it is good to see a lot of noble Lords here—more than would normally be here—because that is what noble Lords opposite are being asked to support. I am sure that nobody believes that the Conservative Government want an autocracy, but it undermines one of the fundamental principles of our democracy to allow a politician to determine for how long somebody should be detained. As I understand it—and the noble Lord, Lord Anderson, will correct me if I am wrong—that goes to the heart of what Amendment 71 is about.
It is totally and utterly unacceptable, given the extent of the power which we are going to give the Home Secretary, that the Government will not—or cannot—tell us how long someone can actually be detained for. It is an unlimited period of time. The expectation is 28 days, but supposing you cannot remove somebody after 28 days. Can you keep them for 29 or 30? What if you still have not removed them—is it 31? Tell me when it is too many; we can go on and on, and if I was doing a filibuster, I would. The noble Lord, Lord Alton, and one or two others will have been in the other place when that has happened, but we will not do that here.
The serious point is: how many days are too many? The Minister has to answer this, because he is asking this Parliament—this Chamber—to allow legislation to go through where people, including children, can de detained for an unspecified period on the say-so of the Home Secretary. How on earth can that be something we think is appropriate? Let the Minister answer that, please, specifically: why is it appropriate for the Home Secretary rather than the courts to determine what is a reasonable period, and how long can someone actually be detained for? Can we have a maximum rather than a minimum? What happens after 28 days?
I have a couple of other points because we want to talk about this properly, so we will do that. I am not going to rush this, because it is a really important point of principle about detaining people on the say-so of the Home Secretary. What are the practicalities of that? As the noble Lord, Lord Sharpe, and others will know, I went to the Government’s helpful fact sheet on the Bill. It asks:
“How many new detention spaces will be required?”
It says that they are building two but does not say how many, so they do not know. It then asks:
“Will the necessary … accommodation be available?”.
I say to the Government: if your Illegal Migration Bill is predicated on detaining everybody who arrives illegally or irregularly—and Clause 11 is headed “Period for which persons may be detained”—how on earth can the Government not say in their own fact sheet that the places will be available? It just does not make sense.
We not only have a Bill which in principle, in Clause 11, gives real, genuine concerns about undermining one of the pillars and principles of our democracy. We also have a government fact sheet dealing with Clause 11 which cannot tell this Parliament, or the people who read Home Office fact sheets—this one was published on 11 May 2023—that the new detention centres required by the Bill will be built. They cannot say categorically that the numbers of places will be available. If we have a period for which persons may be detained under Clause 11 but the Home Office cannot say where they are going to be detained, what is going to happen? We are told that the Home Secretary needs all these people to be detained, so how will that work when the Home Office cannot tell us where they are going to be detained and whether there will be enough places?
It starts with the very serious principle that the noble Lord, Lord Anderson, outlined for us, which was followed up by the noble Lord, Lord German, about the arbitrary nature of the power that the Home Secretary will have to determine the detention of individuals for an unspecified amount of time rather than that being something which, in the past, this country has said that the courts should do and that a judge should determine. That is a really serious move away from something that has stood our country proud for centuries; and alongside our criticism of the fact that the Bill does not conform to the principles that we would want is its unworkability.
This Chamber deserves some answers on those points. It does not want any platitudes such as, “The Government are considering how to deal with this”. We need some genuine answers with some genuine facts for us to make a determination about the best way forward.
My Lords, Clause 11 clarifies the period of time that the Secretary of State may detain individuals for by placing two of the common law, so-called Hardial Singh, principles on a statutory footing. The Hardial Singh principles provide that a person may only be detained for a period that is reasonable in all the circumstances and if, before the expiry of the reasonable period, it becomes apparent that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, the Home Secretary should not seek to continue the detention.
Clause 11 also makes it clear that it is for the Secretary of State, rather than the courts, to determine what constitutes a reasonable time in which to detain an individual for the specific statutory purpose. This is as it should be, I suggest to the Committee. I can confirm that this change, further to the question from the noble Lord, Lord Anderson, will apply to all immigration detention powers.
I put it to noble Lords that it is properly a matter for the Home Secretary rather than the courts to decide such matters as it will be the Home Office which is in full possession of all the relevant facts—
—and which is best placed to decide whether continued detention is reasonable in all the circumstances. It will of course continue to be the case that a person’s detention will be subject to judicial oversight.
As we will come to when we debate Clause 12, while it is the case that a person will not be able to challenge their detention before the First-tier Tribunal or seek a judicial review within the first 28 days, they will at any time be able to make an application for a writ of habeas corpus or the equivalent in Scotland. This was elided in the contribution from the noble Lord, Lord Anderson, when he suggested that judicial oversight was not available. In fact, it is, through the mechanism of habeas corpus.
Forgive me, I will take the point in just a second. The point was made good in the fact that Hardial Singh, the great decision of the noble and learned Lord, Lord Woolf, from the early 1980s, was a case concerning a habeas corpus application. I give way to the noble Lord, Lord Anderson.
I wondered if the Minister has seen what the Constitution Committee had to say about that argument.
“Although a writ of habeas corpus is available to a detainee in the first 28 days of detention, it is unlikely to be successful given the wide range of powers to detain in clauses 10 and 11”.
And did he see what the Bar Council had to say?
“While habeas corpus would remain available, that is a remedy rather than a limitation on the power of detention. Further, it does not test whether detention is reasonable”.
It is a fine old remedy, now fallen into disuse, but it is no substitute for the power in a court to determine whether a period of detention is reasonable or unreasonable.
I thank the noble Lord for reminding me of those two contributions, but I am afraid I do not agree with their analysis for the reason I identified immediately before the noble Lord’s contribution. The case of Hardial Singh was a habeas corpus application and in that decision the evaluation of reasonableness featured as part of the challenge of the lawfulness of detention.
I am grateful to the Minister. He will understand why some of us are very concerned about this aspect of the Bill. He said a moment ago that the Secretary of State will now determine what a reasonable period is. The Minister made that very clear. There were gasps in the Committee, and not just from the lawyers. If the Secretary of State is now going to determine what a reasonable and therefore lawful period is—that could be a very long time or an indefinite period—then how will habeas corpus help anyone? Habeas corpus is only there to challenge the legality of detention, but if it is legal under the statute to detain someone indefinitely, how on earth will habeas corpus help in the way that it once helped Hardial Singh?
The noble Baroness overlooks the fact that the Home Secretary’s discretion is subject to the other condition in the operation of the detention power. As I made clear earlier, if it becomes apparent that the Home Secretary will not be able to examine, effect removal or grant leave within a reasonable period, the Home Secretary should not seek to continue detention. It is not an unfettered decision of the Home Secretary to determine the length of custody, as it has been portrayed by the noble Lord, Lord Coaker, and the noble Baroness, Lady Chakrabarti—that is simply a mischaracterisation of the power in the Bill.
It may be because of the hour that I have momentarily forgotten, but can the Minister remind us how the Home Secretary’s powers will be constrained if there is no court supervision? I agree with what the noble Baroness, Lady Chakrabarti, said about habeas corpus and leaving that aside. How will the Home Secretary be checked in any way?
One cannot leave habeas corpus to one side. The ancient writ of habeas corpus is available before the High Court to challenge the legality of the detention, and it is a very important safeguard. From the expiry of the 28-day period, the person detained will be able to make application for bail or a judicial review. One will therefore see that there is ample avenue for a person believing themselves to be unlawfully detained to challenge that detention.
I think I heard the Minister right when he said that the Government think it better for the Secretary of State to decide, because she has all the facts. To me at least, that is a comment that could be made in any tinpot dictatorship. It is the way that you get rid of a decent judicial system and allow executive power to run riot. Does he not know the consequences of saying that in a British Parliament about our system? It is absolutely outrageous.
I am afraid that I disagree with the noble Lord. In a “tinpot dictatorship”, they would not have recourse to the writ of habeas corpus, which entitles the High Court to review the legality of detention. I do not think many dictatorships would afford a detainee those safeguards.
I return to the same point about the suggestion that the Home Secretary has the most information so is the person who should decide. My reflections on this are undoubtedly influenced by being involved in the Financial Services and Markets Bill later today and with the upcoming economic crime Bill. I wonder whether the Government are considering making the same arguments when it comes to aspects of the financial sector and major commercial businesses. Are they going to decide that they know best about how those things should go and take the courts out of all that, with just the Government deciding how businesses are to be able to operate?
It is the morning.
Later in the morning—I am grateful for the correction.
In considering the lawfulness of detention and a writ of habeas corpus, the High Court would undoubtedly apply the Hardial Singh principles. Given his remarks, I remind the noble Lord, Lord German, that those principles were established in that habeas corpus case, as I have already pointed out.
As the noble Lord, Lord Anderson, has set out, Amendments 71 and 72 seek to restrict the use of detention where there is a barrier that prevents the purpose of detention being carried out. The fear is that the provisions in Clause 11 will be used to extend detention indefinitely. This is simply not the case; the Bill does not provide for indefinite detention. Moreover, our aim is to ensure that people are not held in detention for any longer than is absolutely necessary. Circumstances can change in detention. Barriers are anticipated and, in many instances, can be resolved quickly with examination, decisions or removal still able to take place within a reasonable period. Where there is a significant and/or material change in a person’s circumstances, our policy is clear that detention must be reviewed. If it is considered that the anticipated period of detention is not reasonably necessary, the individual will be bailed.
Amendment 71A tabled by the noble Lord, Lord German, probes whether detention for the purpose of making arrangements for release is permissible under Article 5 of the European Convention on Human Rights. The Government’s position, as set out in our published ECHR memorandum, is that giving a discretionary power to the Secretary of State to detain an individual for a period that is reasonably necessary to enable arrangements for the person’s release is Article 5 compliant. It is a matter of common sense that it may be necessary to detain an individual for a short period of time to make practical arrangements for their release from detention. In accordance with Article 5, an individual will be able to challenge the lawfulness of their detention via the courts at all points of their detention, either via an application for a writ of habeas corpus, via judicial review or via an application for bail to the First-tier Tribunal after the first 28 days of detention have elapsed.
We continue to study the Constitution Committee’s report, and in preparing our full response we will take account of what has been said in this debate, but I do not accept the conclusion of the Constitution Committee that the detention provisions in the Bill are inappropriate. No doubt we will return to this at the next stage, by which time we will aim to have responded formally to the Constitution Committee’s report. In the meantime, I invite the noble Lord to withdraw the amendment.
The Minister will say that I have been very slow, and it is quite possible that I have, but if I have heard the answer to the simple question of what these clauses mean, to which Amendments 71 and 72 are directed, I have not understood it. I took the simplest example from Clause 11(6), which says that a person may be detained, pending a decision whether to remove that person,
“regardless of whether there is anything that for the time being prevents the decision from being made”.
What does that mean? Does it mean that it is deemed to be reasonable for the Secretary of State to perpetuate the detention, even after a decision is ripe for the making and even after it becomes possible immediately to decide that the person should not be detained? I genuinely do not understand what these subsections seek to achieve, and I have not heard from the Minister what the Government say about that. I do not get it from the Explanatory Notes either, so I have some sympathy with him. Will he please do his best to explain this? If he cannot do it now, let us have it in writing.
I am very sorry, but I did not choose the hour; others chose the hour on my behalf, which may be how a detainee feels under this proposed legislation.
I want to understand the Minister’s position and explanation. Previously, he has been very clear that it is for the Secretary of State alone, with command of all the facts—just as a prosecutor always has command of all the facts, so that we can get rid of criminal custody time limits pre-charge as well—to determine what is a reasonable period. It has been made absolutely clear that it is not for a court but for the Secretary of State to determine what is a reasonable period for detention.
That gives concern to some of us that detention could be indefinite, not least because the Minister’s noble and learned friend from the Ministry of Justice said some hours ago—or was it days ago? I forget—that we do not necessarily have return agreements with everyone yet, so this could take rather a long time. We therefore have people who are potentially detained for a very long time or such period as the Secretary of State determines reasonable.
Then, however, in response to our concerns, the Minister says, “Don’t worry”, because people will be able to challenge their detention on habeas corpus. They may not be able to do very much for 28 days but, after 28 days—which is rather a long time to be detained—they will be able to go to a court. What can a court possibly do if it is for the Secretary of State alone to determine what is a reasonable period? Against what test will this court be able to say that a detention was unlawful? Can he give us some example of an occasion when it would be open to a court to say that a particular detention under this legislation was not lawful?
The noble Baroness consciously disregards the other aspects of the test carefully set out in the draft legislation. Clearly, the decision on reasonableness will be subject to judicial review on conventional public law grounds. If it is Wednesbury unreasonable, it will of course be capable of challenge on those grounds.
If the noble Baroness looks at Clause 11, she will see that the apportionment of the decision on the period of time is very carefully hedged about with the case law that has flown from the decision of Hardial Singh, which is reflected in the subsections amending the various categories of detention. She will see in Clause 11(1)(b) the amendments to paragraph 17 of Schedule 2 to the 1971 Act; that relates to the period to enable the examination or removal to be carried out. Then, in Clause 11(2), at line 25 of page 18, there is the insertion into paragraph 2 of Schedule 3 to the 1971 Act, whereby a period of detention is authorised if it is “reasonably necessary” to enable a deportation to be made or the removal to be carried out. Clearly, a court would view the test of reasonable necessity in the context of the statutory provision enabling deportation or removal to be carried out.
As the noble Baroness reads on, the purpose of all these provisions is clear. I simply do not accept the characterisation that she makes that this is some overarching power for the Home Secretary to detain someone at will for an indefinite period; that is plainly not the case.
I am being slow now, but the Minister has said on a number of occasions that this Bill does not provide for “indefinite detention”. Where in the Bill does it place a limit on how long someone will be detained, and will someone going into detention know how long they will be in detention for? If not, then it is indefinite.
I am very grateful to the noble Baroness for asking me that question, because it allows me to point out that, under the present law—under Schedule 2 to the 1971 Act and the case law on Hardial Singh—there is no limit. On the same basis, it is now codified in the Bill. The power to detain is exactly the same, save for this change from an objective test of reasonableness to reasonableness in the view of the Home Secretary, governed by the other provisions in the Bill. It is impossible to set a time limit, as I was invited to by the noble Lord, Lord Coaker. Although the noble Baroness suggests that there should be a time limit, that is simply not the way that the law has evolved in this area following Hardial Singh—there is no upper limit.
The court will evaluate and, obviously, a time would logically come when somebody had been detained for a long period and the court could not form a view that that period was reasonably necessary, for example, to enable the examination or removal to be carried out. It is a fact-sensitive decision in relation to the duration of detention.
Can the Minister help me with the powers of the court? I know we are going to discuss Clause 12 in the next group, but it provides that
“In relation to detention during the relevant period, the decision is final”—
that is, the decision of the Secretary of State—
and is not liable to be questioned or set aside in any court or tribunal”.
What does that mean in light of what the Minister has just been telling us about the powers of the court?
We will discuss Clause 12 in detail in the next group. Clause 12 relates to the powers to grant immigration bail. In Clause 12(4) the text of new paragraph 3A is inserted into Schedule 10 to the Immigration Act, which deals with immigration bail. I will address this in detail on the next group. It would make more sense to deal with it then, rather than now.
My Lords, may I go back to the question of “indefinite”? In effect, the Minister has said that the period is indefinite. We know that the current situation allows for indefinite detention, and many of us have argued many times that it should not because most other countries place a time limit on it. The Home Office comes back and says, “Oh no, it is not indefinite because you are not there for ever”. It uses a very unusual definition of indefinite. What does the Minister mean by indefinite if he is saying that this does not provide for indefinite detention, but has also just clearly said that it does?
I appreciate that the noble Baroness has campaigned for a time limit, but that is not the way it is done at present. This provision simply codifies the existing rule. While she and I may disagree on the meaning of “indefinite”, the context of the word—as perhaps advanced by the noble Lord, Lord Coaker—is the idea of a period of detention such as that perhaps envisaged in circumstances of a whole-life sentence without any possibility of release. That is, in its purest form, indefinite detention. That is clearly not what is authorised by these provisions.
With respect, I would say to the Committee that I think the Minister answered the point, but the answer was very telling. The answer was that the current situation, which is an objective test for what is a reasonable period—an objective test will ultimately be second-guessed and supervised by a court—is to be replaced with the opinion of the Home Secretary on what a reasonable period of detention is. That, I think, is the concern of the Committee. It may be indefinite already, and it is, but now it will be indefinite and subject to the opinion of the Home Secretary—not an objective test that can be reviewed properly and robustly in a court of law.
I disagree with the noble Baroness that the Home Secretary’s decision would in any way lack objectivity. The point I made—I think, powerfully—is that the Home Secretary is in possession of all the facts that relate to the interlocking factors which justify detention. Therefore, the Home Secretary is best placed to make the decision, not any other abstract body. That is why it is appropriate that the Home Secretary has that power.
I thank the Minister. Again, as I think was picked up—I cannot remember by whom; it was either the noble Lord, Lord Coaker, or the noble Lord, Lord Bach—the Minister has just repeated his insistence that it is the Home Secretary who uniquely is in a position to decide the length of detention. Then the Minister told us that there are all these powers for the court, and he recently said that Clause 12, which I cited, applies only for seeking bail. I do not think that is right; commentaries from people much cleverer than me say that it ousts judicial review challenges to detention during the period. It is not just about bail; it ousts judicial review challenges to detention. The Minister has claimed that there is the ability to go to a court to challenge the length of the detention—that is what he said a few minutes ago. Is that true or not? Is it the Home Secretary who has carte blanche to decide, or can someone go to a court to challenge the length of their detention—or is that ousted by Clause 12, as I understand it?
The noble Baroness is perhaps a little confused by the way that these provisions interrelate. The detention power is contained within Clauses 10 and 11, and the detention period is regulated by a number of factors set out in the provisions and depending on the purpose of the detention for which the person is held. For the Home Secretary, the question is how long is reasonable in the context of the particular act for which they are being held. As we know, a 28-day period is provided for by the legislation before which a person cannot apply for either bail or judicial review. That is the passage the noble Baroness refers to. Before that 28-day period, the writ of habeas corpus is preserved, as I think I made clear in my remarks. I hope that clarifies matters for the noble Baroness, and we will no doubt retread these waters at some length when we discuss Clause 12 in the next group.
It is for me to conclude this fascinating debate. I am grateful to everyone who has spoken. The amendments to which I spoke were very small and technical ones. I am afraid that I am no wiser now than when I first stood up as to what the clauses I sought to amend mean, but I am grateful to the Minister for offering to write to me about that. I hope he will spread that letter around; I am sure it will attract huge interest around the Committee.
The debate of substance that we heard is one of huge importance. It was a relief to hear the Minister say that there is no intention to degrade the Hardial Singh principles or to depart from them. When the Explanatory Notes say they are to be partially codified, that does not mean to say the other part is to be discarded. I understood the Minister to be saying, from the Dispatch Box, that the Hardial Singh principles remain part of our law.
I think the noble Baroness Chakrabarti was absolutely right to identify the true issue of principle as that of who shall decide: which is the impartial body best equipped to decide whether a period of detention is reasonable? To take rather a simple analogy, the police have to detain people when they have arrested them and are wondering whether to charge them. You could say that the police have the best knowledge of all the elements of the case—they know the evidence as it is developing, they have access to the person and they can tell what kind of state they are in—so why not let the police decide how long they should be detained? No civilised country would do that. We entrust this to the powers of an impartial court.
I am sure that, when we come on to Clause 12, we will discuss just how extensive those powers are. However, when you see that the Explanatory Notes themselves say that the intention of this Bill is too reverse the paragraph of the judgment I read out, saying that it must be for the court and not the Home Secretary to make that decision, you have a pretty good idea of what Clauses 11 and 12 are all about. Obviously at this stage, I beg leave to withdraw my amendment.
Amendment 71 withdrawn.
Amendments 71A to 72 not moved.
Clause 11 agreed.
Amendments 73 to 76B not moved.
Clause 12: Powers to grant immigration bail
76C: Clause 12, page 21, line 3, leave out “(4)” and insert “(4A)”
Member's explanatory statement
This amendment is consequential on the insertion of new subsection (4A).
My Lords, before speaking to Amendment 76C, can I say for my own part how disgraceful I think it is that we are debating these important and serious matters at this hour in the morning? It is also disgraceful that Ministers of the Crown, who are busy, with real jobs to do, are having to stay here, obviously because they have been told to do so. I think the same applies to those sitting on their Back Benches. If it is any comfort to the Government, I do not intend to call a vote tonight which they might lose. I do not think any of my noble friends or anyone else on this side of the Committee plans to do that. It is so disappointing that the Bill is being dealt with in this way, at this hour of the morning.
I turn to Amendment 76C, which is consequential on Amendment 79 in the name of the noble Baroness, Lady Hamwee, who has very kindly allowed me to speak to it. We are now on Clause 12, on immigration bail. The amendment would amend the existing provision that requires an automatic bail hearing after four months of detention so as to require instead such a hearing after 28 days of detention. It would ensure that the provisions in the Bill authorising detention for a period of 28 days—which can be legitimately described as draconian because they involve no recourse to a bail application and no recourse to judicial review of the decision to detain—are ameliorated by a protective bail provision at the 28-day point in a person’s detention. That would serve as an essential safeguard for migrants, giving them certainty that their detention is subject to further independent judicial oversight.
That is particularly important given that the power to review detention by way of judicial review will be curtailed so that even an irrational decision cannot be challenged by a person who has been detained. Recourse to an automatic bail application would allow an independent court to assess the continued need and justification for the Home Office to maintain detention, alongside assessing the prospect of absconding if bail was granted.
The Minister can say, quite rightly—this takes us on to my second amendment—that existing provisions in the Bill will allow a person to apply for bail at the 28-day point. However, relying solely on the person detained to make an application will deter some people from applying, for reasons ranging from a belief that they need a legal representative to not being able, frankly, to properly understand the process. I am informed that the organisation Bail for Immigration Detainees comes across people who have not, and have never, applied for bail for these very reasons, despite the fact that they have been held under immigration powers for several months.
In addition, it is likely that a bail hearing would not take place for some days after an application is submitted after the 28-day point. Only at that point will it be listed for hearing, resulting in sometimes weeks of delays. Therefore, ensuring that a bail application is automatically listed for hearing at the 28-day point would act as a protective measure. The Government would not be giving very much away by allowing such a course to happen.
I want to put just three questions to the Minister. First, do the Government agree that some people who are detained for immigration reasons may be vulnerable and may not understand how to apply for bail? Is this not why the Government themselves introduced provision for automatic bail after four months? Secondly, if the Government intend to prevent people being able to make any applications for bail for at least 28 days, would it not assist access to justice and the protection of the right of the individual to ensure that persons who are detained for at least 28 days have an automatic opportunity for the decision to detain and not to grant bail to be considered by an independent court? Thirdly—we revert back to the position about children—is it not fair and right that vulnerable people, including children, who are alone, should have their detention reviewed and justified by the Secretary of State, and that an independent court should consider whether bail should be granted? I would be grateful to the Minister for an answer to that question.
I concede straightaway that the wording of the amendment is not perfect. I want to make that clear, so the Government do not need to make that point. It is the principle behind what I say that matters.
Amendment 79A is not about automatic bail but about the right to ask for bail, which, of course, as the Minister has reminded us, exists. Previously, a person could apply for immigration bail at any point when they had been present in the UK for eight days, during the course of their detention, and as often as they needed it. At present, the Immigration Act 2016 prevents a person applying for bail within 28 days of a previous refusal of bail unless there is a material change of circumstances. The proposed new clause in my Amendment 79 would amend that so that a person can apply for bail within the 28-day period, but, of course, the hearing of the application cannot take place until the 28-day period has expired, absent a material change of circumstances.
The advantages of such a course are that, first, it would be fairer to the detained person. Secondly, the amendment would enable the tribunal to plan listings according to the 28-day separation between hearing dates. Thirdly, tribunals and hearing centres sometimes have delays of two weeks before a case can be listed for hearing. This means that an application made after 28 days have passed will not be heard for 42 days after the previous hearing. That is unlikely to be what Parliament intended when it limited bail applications to every 28 days. This amendment seeks to ameliorate that problem and do it fairly.
I finish by telling the Committee that the former president of the First-tier Tribunal, Mr Clements, some time ago had what I am putting to your Lordships as an amendment put to him as a proposal. He wrote to the Home Office recommending that he and his fellow judges felt that this was a fairer way of doing things. The Home Office refused. I could read out the letter that Mr Clements sent but I am certainly not going to at this time of night. So there was some high-level judicial support for this some years ago. It seems, at least to me, that this is a possible change that sacrifices nothing of the controversial matters that surround every part of this Bill, and one that the Home Office should consider carefully. I hope the Minister will take that on board. I beg to move.
My Lords, I speak to Amendment 77 in my name and that of my noble friend Lord Paddick. Before I get to that, I express my frustration and anger, as have colleagues on this side of the House, that we are discussing at 2 o’clock in the morning this crucial issue of whether we are going to have arbitrary detention of vulnerable people. The Government have clearly encouraged their backers on the Benches behind them, but we have not heard a peep out of any of them. There are people there I respect, and I cannot believe that they have nothing to say on the issue of whether the Executive should have practically untrammelled powers to lock people up. We have been told how important the laws of the English courts are. This is not some foreign muck law that is being imposed on us; it is the law, developed through revolt and civil wars in this country, that there should be a restraint on the powers of the Executive to keep people in prison. Apparently, there is insufficient interest on the other side of the House, which deeply disappoints me.
The noble Lord, Lord Coaker, said a little while ago that no one thinks the Conservatives want autocracy. I fear that some of the replies we have had from the Minister in the meantime have somewhat unsettled that conclusion. He has rather disabused us of the idea put forward by the noble Lord, Lord Coaker. It is a misapprehension that this Government do not want a warrant to act unlawfully, because apparently they do. I agree with the Bar Council, which has expressed the view that
“the Bill as currently drafted is incompatible with the principles which underly the rule of law”
in particular because it
“ousts the jurisdiction of the courts in key areas leaving the executive able to act without scrutiny (often a hallmark of authoritarianism)”.
That is the Bar Council—no doubt regarded as lefty lawyers by the other side of the Chamber, but for many of us it is flying the flag for justice and the rule of law.
The noble Lord, Lord Anderson, who dealt very capably with this question on Clause 11, ended up concluding that he was still a little unsure what all the explanations added up to. On Monday, he usefully summarised what we are talking about when he said:
“The Government’s theory of deterrence is based, in significant part, on the neutering of the courts”.
That is really the whole flavour and point of this Bill: to deter people coming and then saying, “We will lock you up and give you no rights whatsoever and, if we can, we’ll chuck you out to Rwanda or somewhere else”—somewhere where there is currently no agreement. If I may carry on quoting him, the noble Lord, Lord Anderson, said:
“Some ouster clauses are aimed at restricting appeals or reviews from the decisions of a legally qualified tribunal. Examples include Clauses 49 and 51”,
which we have not yet got on to. He went on:
“More fundamental in their scope are the ousters in Clauses 4, 12 and 55. They bite not on claims that have already been adjudicated by tribunals but on claims that have never been adjudicated by any court or tribunal”.—[Official Report, 5/6/23; col. 1181.]
He raised this issue in relation to Clause 4; I do so now in relation to Clause 12.
In our debate on the previous group, we discussed the fact that Clause 12 appears to imply pretty much untrammelled powers for the Home Secretary—indeed, for a civil servant—to keep someone in detention. My contention is that new paragraph 3A, to be inserted by Clause 12(4), takes such insulation of detention decisions a step further by expressly ousting the powers of the court and making the Home Secretary’s decision final and not liable to be overturned in court for 28 days. The Minister made much of what powers the courts have. It is true that there are apparently exceptions for judicial review on limited grounds—those being “bad faith” and the fundamental denial of natural justice—but those are unlikely to arise in reality. The grounds for a challenge in the courts are therefore very limited.
Then there is the writ of habeas corpus, but it would be difficult to succeed via that means because a person would have to argue that they were being unlawfully detained when the Bill authorises the detention. As the noble Baroness, Lady Chakrabarti, asked, what is the handle or the purchase for someone trying to pursue a writ of habeas corpus when the whole point of the Bill—at least one of the points of it—is to authorise a blanket power of indefinite detention? How does someone argue to the court that the Home Secretary has exceeded her powers when the Bill is intended to give her precisely those unchallengeable powers? Habeas corpus is a historical but little-used legal route because judicial review has become more predominantly used and because it is so difficult. It is true, apparently—no doubt the lawyers will correct me if I am wrong—that the Hardial Singh case was a habeas corpus case but that was when the principles that are now being overturned applied.
The apparent force of the paragraph to be inserted by Clause 12(4) is to limit the grounds on which someone can challenge immigration detention to very narrow ones. I am afraid that the Minister still has to convince me—he did not manage to do so in our debate on the previous group—that there is much wiggle room for the courts beyond those exceptions of bad faith and the fundamental denial of natural justice, which are cited further down the paragraph.
The right to liberty—to be free of arbitrary detention—is one of the oldest and most emphasised human rights in constitutional thought, which is why our Constitution Committee is so troubled by this clause, among others. It is surely for the courts, not the Government, to decide on the reasonableness of detention, including what is a reasonable period. The committee concluded:
“Clauses 11 and 12 are partial ouster clauses of great constitutional concern”.
That is a pretty strong warning to us. The committee invites Members of this House
“to seek clarity on the operation of this provision and to examine the Government’s reasoning as to why such potential threats to the liberty of the individual are appropriate”.
That is the reason many of us, at least on this side of the House if not on the other, are extremely concerned about the Bill’s provisions and what the Minister has said about them tonight—or this morning—which has not removed our concerns. I hope that a Conservative Government who are true to some of their older traditions, rather than the modern impulses that have seized them, will begin to care about this issue as much as those of us on this side of the House do.
My Lords, I will speak to Amendment 78, tabled by the right reverend Prelate the Bishop of Durham, who is unable to be here at this early hour. I know that he is grateful to the noble Baronesses, Lady Lister and Lady Neuberger, for their support.
A statutory regime of clinical screening for people at risk of harm in detention and for healthcare professionals to be able to report concerns to the Home Office has been a cornerstone of safeguarding in immigration detention since 2001—and rightly so. This amendment looks to ensure that this process does not become inconsequential by preventing the necessary legal oversight of detention decisions. Given the technical nature of the issues relating to medical reporting in detention centres, I will focus my comments on the context of this amendment and set out a few key questions for the Minister.
The harmful impact of being in detention on people’s mental health is widely evidenced. Professor Mary Bosworth’s literature review for Stephen Shaw’s 2016 Review into the Welfare in Detention of Vulnerable Persons summarised that evidence. She concluded:
“Literature from across all the different bodies of work and jurisdictions consistently finds evidence of a negative impact of detention on the mental health of detainees”.
This conclusion should not be set aside. It is most acute for those with pre-existing vulnerabilities. Given that, and the limitations of treating mental illness in detention, it is current Home Office policy not to routinely detain highly vulnerable people, including those with pre-existing mental illnesses and survivors of torture. Decisions to detain must be consistent with detention policies, in particular the adults at risk policy. This policy has statutory force under Section 59 of the Immigration Act 2016. The Government stated then that this policy would introduce into detention decision-making a clear presumption that people who are at risk should not be detained.
The right reverend Prelate the Bishop of Durham has, I believe, thanked the Minster personally for the opportunity to visit two immigration removal centres—visits he greatly valued. Officials and operational staff alike spoke to him of how Shaw’s recommendations have filtered through to every level of working, while recognising that improvements are still to be made. A key component of this is the statutory duty of medical staff to provide clinical safeguarding reports, known as rule 35 or rule 32 reports, where it is believed that detention may cause significant harm to an individual. These are then brought to the attention of those with direct responsibility for authorising detention.
How will this system of detention review on medical grounds be impacted by the provisions in the Bill? Do the Government agree with Stephen Shaw, the adults at risk policy and former ministerial colleagues that those whose care and support needs make it particularly likely that they would suffer disproportionate detriment from being detained would generally be considered unsuitable for immigration detention?
I shall of course listen carefully to the Minister’s answer, but the Bill suggests that the answer is no. By refusing to allow those who are detained to challenge their detention during the first 28 days by way of judicial review, there is no longer a clear presumption that the vulnerable will not be detained. The adults at risk policy provides that vulnerable adults at particular risk of harm in detention should not normally be detained and can be detained only when immigration factors outweigh the presumption to release, but the Bill legislates that the immigration factors at play, namely the Secretary of State’s new duty to detain and deport, will supersede this. If I am incorrect in this assumption, I shall be happy for the Minister to state the true position.
Judicial review is a key mechanism to challenge the tension where professional evidence of medical harm is believed to have been given insufficient weight. In this situation, without recourse to the courts a vulnerable person would be at risk of clinical harm from continuing detention. I appreciate that Rule 35 is a reporting mechanism, not an automatic method of release for an individual in detention, but without legal safeguards, detention for whom it poses a greater risk of medical harm will almost certainly be guaranteed. This is not merely conjecture: the High Court has found a number of breaches of Article 3 of the European Convention on Human Rights in relation to the detention of severely mentally ill people and found that continued detention would have amounted to inhuman and degrading treatment.
If the Bill proceeds in its current form, what weight will the Home Secretary give to medical evidence from professionals, given that detention decisions will be entirely at her discretion and withheld from independent scrutiny? The ability to judicially review the lawfulness and reasonableness of decisions to detain is particularly important given recent independent evidence showing that safeguarding policies are not consistently followed. This concern has been raised often by the independent chief inspector.
Given that the Government have been honest in accepting that improvements are still to be made to safeguarding systems to identify the most medically vulnerable in detention, I ask the Minister why disqualifying those with a clinical report from judicially reviewing their detention was deemed an acceptable risk. Stephen Shaw labelled the adults at risk policy in his progress report as “a work in progress”. How will the Government ensure that this further progress is not halted entirely by the Bill?
Amendment 78 would make an exception to the general ouster of judicial review during the first 28 days of detention where a person has been the subject of a report from a medical practitioner. To be clear, this is where the Home Office has evidence that a person’s health is likely to be injuriously affected by continued detention, they have suicidal intentions or there is concern that they may have been a victim of torture. It is hard to conceive of a more vulnerable grouping, where the stakes are higher, when considering detention.
I fear that preventing any means of legal challenge for those in a very dangerous and precarious medical state could be a disaster waiting to happen. I therefore agree with the Royal College of Psychiatrists that:
“The Bill is not compatible with the fundamental medical principle of doing no harm”.
For that reason I urge the Government to consider the amendment tabled by the right reverend Prelate the Bishop of Durham and the safeguarding issues it highlights with due care.
My Lords, I declare an interest as chair of University College London Hospitals Foundation NHS Trust and of Whittington Health NHS Trust which, given what we are discussing now, is perhaps relevant. There is very little that I can add to the extraordinarily powerful arguments just made by the right reverend Prelate, but I do want to say two things. One is about torture. If someone has been the victim of torture and medical professionals make a report to the Home Secretary to that fact, that person ought to be able to appeal against detention in those first 28 days. The reason for that—for those who have not spent time with those who have been victims of torture—is the very considerable terror that many of those people experience if detained in any way. If they experience that form of terror, they are then very likely to be suicidal and in a situation within detention where the sort of holistic treatment they would need is simply not available.
The second point is about young people particularly who have come to these shores and have experienced detention in their own countries. They have perhaps not been tortured but have been detained for very long periods away from families and friends. I have talked to quite a lot of them because we have a small family charity that provides access to education for young asylum seekers who have no recourse to public funds. They would say that they are unable to cope with being confined in small spaces because of their experience in their home countries. That is another group of people, not necessary those who have been tortured but those who already have either a defined mental illness or a predisposition to one, who ought to be given a protection in those first 28 days.
I very much hope that the Minister will be able to answer the points made by the right reverend Prelate and these two additional points and allow those people who have a medical report to make an appeal for judicial review within their first 28 days.
My Lords, I was going to make a speech in support of Amendment 78, to which I have added my name, but the case has been made so well by the right reverend Prelate and by the noble Baroness, Lady Neuberger, that I simply say that I hope the Minister will take note of what has been said and look kindly on this amendment. I am sure everyone will be very pleased that I am now going to sit down.
My Lords, after the powerful speech from the noble Baroness, Lady Neuberger, I feel rather sad to return to the technical detail. But a point was raised by the noble Baroness, Lady Ludford, that I thought was worth addressing, particularly in the context of the Bar Council briefing. The noble Baroness asked: where is the purchase for the courts to take action? The Bar Council briefing has some really interesting reflections on this. It says that the Bill is unlawful by design and incompatible with the constitutional principle of the rule of law because the law forbids
“the exercise of state power in an arbitrary, oppressive or abusive manner; and that principle ‘cannot be set aside on utilitarian grounds’”.
None the less, the Bar Council says that the courts are
“unlikely to consider that these foundational constitutional principles could alter the government’s intended operation of the Act”,
and that the courts will see that Parliament has decided to trade off the fundamental rights of the rule of law against the Government’s utilitarian principles.
The Minister does not seem to like me cross-referring to other Bills, but I will cross-refer to the Law Society briefing and the Financial Services and Markets Bill, on which we have had a huge debate about the Government’s intention to make the UK’s financial sector competitive. The Law Society says that our global reputation for upholding the rule of law underpins all of our attractiveness to global investment.