84C: After Clause 30, page 108, line 7, at end insert—
“Duty to arrange consideration of bail
(1) Subject as follows, the Secretary of State must arrange a reference to the First-tier Tribunal for the Tribunal to decide whether to grant bail to a person if—
(a) the person is being detained under a provision mentioned in paragraph 1(1)(a) or (c), and
(b) the period of four months beginning with the relevant date has elapsed.
(2) In sub-paragraph (1)(b) “the relevant date” means—
(a) the date on which the person’s detention began, or
(b) if a relevant event has occurred in relation to the person since that date, the last date on which such an event has occurred in relation to the person.
(3) The following are relevant events in relation to a person for the purposes of sub-paragraph (2)(b)—
(a) consideration by the First-tier Tribunal of whether to grant immigration bail to the person;
(b) withdrawal by the person of an application for immigration bail treated as made by the person as the result of a reference under this paragraph;
(c) withdrawal by the person of a notice given under sub-paragraph (6)(b).
(4) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person—
(a) includes such consideration regardless of whether there is a hearing or the First-tier Tribunal makes a determination in the case in question;
(b) includes the dismissal of an application by virtue of provision made under paragraph 9(2).
(5) The reference in sub-paragraph (3)(a) to consideration of whether to grant immigration bail to a person does not include such consideration in a case where—
(a) the person has made an application for bail, other than one treated as made by the person as the result of a reference under this paragraph, and
(b) the First-tier Tribunal is prevented from granting bail to the person by paragraph 3(4) (requirement for Secretary of State’s consent to bail).
(6) The duty in sub-paragraph (1) to arrange a reference does not apply if—
(a) section 3(2) of the Special Immigration Appeals Commission Act 1997 (persons detained in interests of national security etc) applies to the person, or
(b) the person has given to the Secretary of State, and has not withdrawn, written notice that the person does not wish the person’s case to be referred to the First-tier Tribunal under this paragraph.
(7) A reference to the First-tier Tribunal under this paragraph in relation to a person is to be treated for all purposes as an application by that person for the grant of bail under paragraph 1(3).”
Motion A1 (as an amendment to Motion A)
I beg to move that this House do not insist on its Amendment 84 and do agree with the Commons in their Amendment 84C in lieu and disagree with Motion A1 in the name of the noble Lord, Lord Ramsbotham, which seeks to reinstate Amendment 84. I shall speak also to Motion A2 in the name of the noble Baroness, Lady Hamwee, which would amend Amendment 84C to reduce the time limit for automatic bail referrals from four months to two months.
I start by reminding the House of what it has already achieved in its role as a reviewing and revising Chamber. There can be no doubt that the spirited debate in this House has added considerably to the quality of this legislation. This House has done its job, and more. This is indisputably a better Bill for it and, particularly, it does more to protect the interests of the most vulnerable. However, we must now make sure that we deliver what the British public voted for last May and pass this Bill into law.
The Immigration Bill delivers important reforms to our laws, and it is right that we ensure that there is proper consideration and debate of its content. The House’s achievement includes ensuring that the detail of the important reforms in the labour market and illegal working provide an effective mechanism to enable us to clamp down on those who exploit vulnerable migrants. The House has delivered improvements to the provisions on the criminal offences and ensured that the duty to have regard to the need to safeguard the welfare of children underpins all the provisions in the Bill. It has pressed the Government for the amendment tabled by the noble Lord, Lord Dubs, to do more to help refugee children, and the Commons yesterday accepted that amendment.
On detention, the Government recognise the strength of feeling on this issue, the need to ensure that detention is for the shortest period possible and that, in particular, there is proper provision to ensure that those who are vulnerable are detained only when necessary and for the shortest period possible.
On time limits on detention, while we do not agree that those are appropriate, we have listened to the concerns expressed in this House. We have listened to the concern that some people may be unaware of their ability to apply for bail or are unable to make such an application. That is why we have proposed our Amendment 84C, which ensures that, unless the detainee has already had a bail hearing, there will be a bail hearing after four months and every four months thereafter. That is an important safeguard, and this House deserves credit for it.
Amendment 84 places an upper limit on detention for all those who are not being deported of a maximum of 28 days in total, which may be extended by the tribunal only on the basis of exceptional circumstances. It might be helpful to remind noble Lords that we will seek to detain and enforce the removal of only those migrants with no basis to remain in the UK who are unwilling to depart of their own volition or who are non-compliant.
As I have stated before, this arbitrary time limit is frankly unworkable and would provide non-compliant migrants with an easy target to aim for in order to secure their release from detention and frustrate their removal. It would lead to meritless asylum claims being made, meritless judicial reviews being lodged and individuals refusing to co-operate with the documentation process. The aggregate limit of 28 days would cause difficulties if we need to redetain a person when a travel document is delayed or where a person disrupts their removal and needs to be taken back into detention until new removal arrangements are put in place.
It may help the House’s understanding if I illustrate this with some real examples. Mr R’s student visa was curtailed when he failed to enrol at university. He was encountered when giving notice of marriage to a British citizen, which was found to be a sham, and he was detained. The day before he was first due to be removed, he submitted a humans rights claim. He was subsequently removed after 30 days in detention. Mr M was encountered by the police and subsequently detained after his visa had expired. An emergency travel document was applied for, but when he lodged a judicial review he was released on bail. Once the judicial review was resolved he was redetained for removal. He disrupted the first attempt to remove him, so removal had to be rescheduled for a charter flight. Mr M’s two periods of detention totalled 130 days. Neither of these examples is likely to qualify as “exceptional circumstances” which would allow the Secretary of State to apply for extended detention.
This process of considering whether detention should be extended beyond 28 days would be a significant burden on the judiciary, significantly increasing the tribunal’s workload, diverting resources away from consideration of asylum and human rights appeals, and therefore leading to delays elsewhere in the immigration system. It would also increase complexity and require a new infrastructure to provide a process for the tribunal to review extended periods of detention without requiring the Secretary of State to make an application.
In our previous debate, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, helpfully quoted from a recent decision of the Supreme Court which supported a flexible and fact-sensitive approach to the duration of detention. It was also noteworthy that the noble Lord, Lord Ramsbotham, clarified, in response to comments from the noble and learned Lord, Lord Brown, and the noble Lord, Lord Pannick, that,
“I never said that immigration detention should be limited to 28 days. What I said was that nobody should be submitted to administrative detention—that is, detention ordered by civil servants—without judicial oversight of that detention within the shortest time possible ”.—[Official Report, 26/4/16; col. 1097.]
Of course, the noble Lord believes that 28 days is reasonable.
It is on this last point that we disagree. The Government continue to believe that we can best provide the required level of judicial oversight of detention by automatically referring cases to the tribunal at a set point, which we had initially set at six months from either the date of detention or the date of the tribunal’s last consideration of release on bail, with referrals at further six-monthly intervals calculated from the point of the last hearing. I am grateful for the encouragement this measure received from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who expressed his satisfaction that the safeguard this provides, in circumstances where detainees do not themselves apply for bail, properly addresses the problem of detainees having to take the initiative in seeking release from detention.
The duty on the Secretary of State to refer a detainee’s case to the tribunal for bail consideration removes the onus from the individual. Bail guidance, issued by the President of the First-tier Tribunal (Immigration and Asylum Chamber), provides that judges will focus on several matters when considering a grant of bail, including the reasons for detention, the length of detention so far and its likely future duration, as well as the effect of detention on the individual and the likelihood that they will comply with bail conditions. This guidance explicitly states that the tribunal will need to be shown,
“substantial grounds for believing that detention should be maintained”.
The noble Lord, Lord Pannick, also thoughtfully supported the Government’s position that a bail hearing every six months was, to use his term, “adequate”. However, we have taken on board the concerns expressed by a number of colleagues here and in the other place; it is claimed that six months is still too long without judicial oversight. The Government have therefore tabled a motion in the other place proposing, again, a duty to arrange consideration of bail before the tribunal, but this time reducing the timing of the referral from six to four months.
Much has rightly been made in these debates about how detention affects those suffering from mental health problems. The reforms the Government are putting in place in response to Stephen Shaw’s report, including the “adults at risk” policy, will strengthen the existing presumption against detention of those who are particularly vulnerable. This, alongside the overall package of reforms to how immigration detention is managed, including the enhanced gatekeeper role and the new system of quarterly case management reviews, means that we fully expect to see fewer people being detained, and for shorter periods.
Nevertheless, for the small proportion of people who are detained for longer periods, the Government’s amendment ensures that, while judicial oversight may happen even earlier if a person applies for bail themselves, those who do not do so and do not opt out of the process will be guaranteed judicial oversight after at least four months in detention, and at future four-monthly intervals from their last tribunal consideration.
However, we now need to press on with delivering the important measures in this Bill. The other Chamber has considered Amendment 84 on two occasions now, and has rejected it—yesterday, without even pressing it to a vote. We should not continue to insist on this measure.
The Government understand the sentiment behind limiting time and detention, but the practicalities involved mean that Amendment 84 is not realistic or workable for the reasons I have set out at length in previous debates. This is not just the view of the Government. The noble Lords, Lord Pannick, and the noble and learned Lord, Lord Brown—both experienced lawyers in this field—supported the government position. Your Lordships have rightly pressed the Government to examine what more can be done to limit time spent in detention. The Government have listened. They have made significant concessions and explained why they can go no further. The Commons has twice agreed with the Government. I urge noble Lords to now accept that decision.
Amendment 84D in the name of the noble Baroness, Lady Hamwee, accepts the principle behind Commons Amendment 84C and automatic bail referrals, but proposes to reduce the timing from four to two months. The Government have already moved their original position from six to four months, accepting that there is a case for more frequent judicial oversight. With respect to the noble Baroness, Lady Hamwee, we believe any further reduction is unworkable.
In our last debate, I noted that Labour had repealed legislation for routine bail hearings at eight or 36 days because they were impracticable. Likewise, if the frequency of referrals was two months, this would still impose a significant extra burden on the tribunal and the Home Office, diverting valuable resources away from the consideration of asylum and human rights appeals, the management of the removal centres, and delivery of the removals programme at a time when their efforts should be focused on supporting faster and more cohesive immigration and asylum processes.
Your Lordships have raised legitimate concerns and the Government have listened and have made significant amendments to this Bill. The time, I submit, has now come to implement it. I beg to move.
Motion A1 (as an amendment to Motion A)
My Lords, I am very grateful to the Minister for the care with which he has set out the Government’s case. I have often thought that the worst experience in life is to be associated with something that you know to be fundamentally wrong, but feel unable to prevent. I am experiencing that today, because, to our collective shame, this House could be about to sanction something that, as a nation, we have roundly condemned, and indeed fought against, when practised by others over the years—namely, the arbitrary detention of innocent people by administrative diktat, rather than the due process of the rule of law.
During the passage of this dreadful Bill, with more than 400 government amendments suggesting that it had not been thought through before it was introduced, the House has twice voted to uphold the recommendation of a committee of the All-Party Group on Refugees and Migration, of which I and the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, were privileged to be members. The committee recommended that administrative detention, ordered by Home Office civil servants, should be limited to 28 days, after which the Home Secretary should be required, by law, to seek the approval of the First-tier Tribunal for any extension. Last night the Minister in the other place spectacularly missed that point when alleging that to specify a maximum time for immigration detention would be arbitrary, would not take account of individual circumstances, and would have a negative effect on the Government’s ability to enforce immigration controls and maintain public safety by encouraging individuals to seek to frustrate the removals process until this time limit was reached.
During the past 19 years I have had frequent cause to express my concern about the appallingly low standard of casework and procedural oversight in our immigration system. This began when, as Chief Inspector of Prisons, I found over 20 people from Bradford, who had been in this country for over 20 years—many of them married and with businesses of their own—who had been arrested and transported to Birmingham prison where, not surprisingly because they had not been charged with any offence, they went on hunger strike against the wholly inappropriate prison regime. Their right to remain in this country had not been processed by the Home Office—which is true today of more than 631,000 others—whose officials saw them as easy pickings for meeting performance indicators. I immediately complained to the Minister responsible, and was asked to take on the inspection of all immigration detention centres for my pains. This included inspecting Campsfield House after a riot, where I found that immigration centre rules were also wholly inappropriate, being based on prison rather than detention rules. My inspectorate and I set about revising them, inviting Home Office officials to work with us, the outcome being the immigration detention rules often quoted in debate on this Bill.
Since retiring as chief inspector, I have been a member of the Independent Asylum Commission, chaired an inquiry into the unlawful killing of an Angolan by G4S guards during an enforced removal, delivered a dossier on deaths and injuries inflicted on others being returned, forwarded reports on the inefficiency of the complaints system to the Home Secretary and lost count of the number of critical reports by inspectors of immigration and prisons that I have read. In other words, my 19-year experience of the immigration system entirely endorses the view of its then titular head, the noble Lord, Lord Reid, who, when Home Secretary, described it as not fit for purpose. Indeed, these experiences have encouraged me to believe that only root-and-branch surgery will enable the system to have any hope of coping with today’s requirements, let alone tomorrow’s, which will be exacerbated not just by civil wars in the Middle East but by other population movements and the effects of climate change.
I must admit that I was somewhat surprised last week when my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Pannick focused on the periphery of theoretical access to the bail system rather than the fundamental obscenity of administrative detention. Their intervention reminded me that, over the years, successive Ministers have preferred to listen to fudge presented to them by their officials rather than facts immediately apparent to anyone who, like me, has had cause to examine them in detail. As has been reported time and again, conditions in our immigration removal centres are not good for a whole variety of reasons, not least lack of Home Office oversight. Four months is far too long for anyone to be condemned to remain in such conditions, certainly when it seems to be primarily for the convenience of incompetent officials and is not sanctioned by a court of law.
I do not pretend that casework is easy—indeed, one former head of the UK Border Agency decreed that only graduates were to do it—but its present standard, judging by the number of successful appeals against it, is appalling. I am not surprised that first the noble Lord, Lord Bates, and then the noble and learned Lord, Lord Keen, should have announced new arrangements, although I must admit that, having heard similar promises many times in the past 19 years, I will only believe them when I see them.
I now feel squeezed. Not only is time running out before Parliament is prorogued but I fear that, on the evidence of the amendment not being pressed to a vote in the other place last night, should noble Lords support my appeal to put pride in the reputation of our great nation before party-political considerations and vote for what in their hearts they know to be right—namely, that administrative detention of anyone, anywhere, is fundamentally wrong—it may not succeed. I am conscious that it is easy for an independent Cross-Bencher to speak like that, but I am conscious, too, of the constitutional position of this House, which I do not want to put at risk.
The immigration system in this country is so dysfunctional that even the Home Office’s favourite reporter, Stephen Shaw, has criticised it in detail. As an optimist, I hope that the Home Secretary will read what he said, and has been said during our debates in this House, before she wilfully damages our global reputation for being a civilised nation by going ahead with her alternative to limiting detention to 28 days. It is with a heavy heart that I beg to move.
The original Question was that Motion A be agreed to, since when Amendment A1 has been moved to,
“leave out from ‘House’ to end and insert …‘do insist on its Amendment 84’”.
The Question, therefore, is that Amendment A1 be agreed to. I should inform the House that if this amendment is agreed to, I cannot call Amendment A2 by reason of pre-emption.
My Lords, many of your Lordships will have negotiated a variety of agreements and arrangements, been involved in the toing and froing of proposals and counterproposals, and experienced the feeling of, “Okay, enough, let us move on”.
I do not equate that with this issue. I am realistic enough to understand where the Government have got to, but it is not far enough. From my privileged, comfortable position, compared with the asylum seekers, the subject of these amendments, I cannot leave it there. I do not feel, in the words of the noble and learned Lord, that I have done my job and done more.
I want to make it clear that I support the noble Lord, Lord Ramsbotham. To deprive an individual of liberty for the purposes of immigration control should be an absolute last resort. It should be comparatively rare and for the shortest possible time. At the last stage but one of this Bill, the Government introduced their amendment for automatic judicial oversight. We heard then references to detainees still being able to apply for bail and to access legal advice at any time, and so on. That painted a picture which, though technically correct, did not accord with the realities described to me over the years.
The noble and learned Lord introduced the automatic hearing after six months as a “proportionate response”, and said that earlier referral might result in work for both the tribunal and the Home Office at a time when an individual’s removal from the country was planned and imminent. So I was pleased last night that the Minister in the Commons, “after careful consideration”, moved a reduction from six months to four months to reflect the fact that the vast majority are detained for fewer than four months.
At the end of last December, on the latest figures that we have, 2,607 people were detained. Of these, 530—roughly 20% of the detainee population—had been detained for less than four months but longer than two months. Those are the numbers that my amendment is about, although they are 530 individuals, not just faceless numbers.
The impact of immigration detention, which is not a sanction—it is not punishment for wrongdoing—is considerable and reference has rightly been made to the particular impact on mental health. I look forward to Stephen Shaw’s further work and hope that it will ameliorate conditions, but there must always be a significant impact. I do not know, though I can speculate on, the Government’s reason for moving from the proportionate six months to four months, but if they can move, I suggest they can move further. In the mix of assessing what is proportionate, the impact of administrative detention must be a significant factor. Let us reduce it as much as possible. That is why I propose two months.
I take this opportunity to say, too, that in all this I do not want to lose sight of the objective of improving the whole returns process. Alternatives to detention with case managers who are not decision-makers would be more humane, less costly and more efficient. There is plenty of experience of that in other countries. An improved returns system would reduce the burden on tribunals and the Home Office. It may be trite but it is true that efficiency is much of the answer. I hope noble Lords will be sympathetic to my proposal to reduce it still more, and take us further on the journey that the Government have led us on with regard to the period when there must be an automatic judicial oversight of each individual’s position.
In the Commons last night, the government Minister confirmed that the Government accepted that there should be judicial oversight of administrative immigration detention, and that was why they had previously tabled a Motion, the effect of which would be that individuals would automatically be referred to the tribunal for a bail hearing six months after their detention began, or, if the tribunal had already considered whether to release the person within the first six months, six months after that consideration.
That amendment was not accepted in this House, which again carried a Motion providing for a 28-day period of administrative immigration detention, after which the Secretary of State could apply to extend detention in exceptional circumstances. The Commons has again rejected the amendment from this House and has instead passed a government amendment reducing the timing of an automatic bail referral from six to four months, since, apparently, the vast majority of persons are detained for less than four months. Will the Government confirm that that bail hearing after four months of detention will be automatic and will not depend on the individual in detention having to initiate the application?
This is an issue which this House has already sent back to the Commons twice. Consideration obviously has to be given to the role of this unelected House in the legislative process as a revising Chamber, inviting the Commons to think again in a situation where the elected Commons and the Government have made some movement—albeit not enough to meet the views of this House—on the length of administrative immigration detention without automatic judicial oversight.
My Lords, the noble Lord, Lord Ramsbotham, made a powerful speech. I will say a word in response to it. I am sorry that the noble Lord thinks that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and I were focusing on the “periphery” last week and supporting a “fudge”, as he put it. Your Lordships need to focus on the noble Lord’s amendment. It provides that, after 28 days, there would be no possibility of detention of a person for immigration reasons other than in exceptional circumstances. Last week I found that not to be something that I could support and I still cannot support it, because a person can be detained only for the purpose of removal and only for a reasonable period for that purpose. There is nothing exceptional about it taking longer than 28 days to remove a person who has been detained for immigration reasons. There has to be discussion with the country to which the individual will be removed and persons being removed often do not co-operate with their removal. There is nothing exceptional about it taking longer than 28 days. Of course, the individual concerned is also entitled at any time to require a judicial assessment of whether it is appropriate for them to continue to be detained for immigration purposes. I am pleased that the Government have moved to a four-month period and I think that is the right result.
My Lords, I, too, support Motion A. I will confine myself to three comparatively brief points. First, as has been made plain, the Government have already moved from the earlier proposal of six months down to four. Yesterday, as those who have read the debate in the other place will know, there was barely a voice and no vote whatever against that proposal.
The noble Lord, Lord Ramsbotham, has few greater admirers than I in this Chamber but, as I suggested earlier, his amendment goes altogether too far. One defect is that it is internally inconsistent. I mentioned this on Report but did not think it necessary to do so in the last round of ping-pong, though I rather regret that now. On its face, it refers in new subsection (1) to detention under any of the relevant powers. These are defined in new subsection (6) and include two dealing with detention pending deportation. However, looking at new subsection (4) of Amendment 84, it does not apply in cases where the Secretary of State is determined that there will be deportation. This is an internal inconsistency.
I suggest that four months properly protects against any risk of what can seriously be called arbitrary detention. One must remember that it is a safeguard over and above the intrinsic ability of those who are detained to seek bail—a safeguard I acknowledge to be appropriate and necessary, not least in the case of those with mental health problems. The proposal in the amendment of the noble Lord, Lord Ramsbotham, that there should be exceptional circumstances to justify detention beyond 28 days, is unworkable. The Minister gave reasons and illustrations, as did the noble Lord, Lord Pannick.
A shorter period, as proposed by the noble Baroness, Lady Hamwee—of whom, again, I am a great admirer—is, frankly, impracticable. Tribunals are already hugely busy and overworked. They really must not be overwhelmed.
My Lords, I will not repeat all the arguments but, as a member of the all-party inquiry, I support Amendments A1 and A2. The Commons had only an hour yesterday. Quite understandably, most of it was spent teasing out the practical implications of my noble friend Lord Dubs’ amendment. I do not think we should read too much into the fact that not much was said about these amendments.
My Lords, I am obliged to noble Lords for their contributions to this debate. I acknowledge the work done in the past by the noble Lord, Lord Ramsbotham, on detention and on the revising of the immigration and detention rules. I must, however, take issue with the suggestion that access to bail is merely theoretical and that there is an absence of judicial oversight.
The access to bail arises immediately on detention and a tribunal must be persuaded that there are substantial grounds for believing that detention should be maintained. This is not a theoretical right; it is an obligation on the part of the Home Office to persuade a tribunal that detention should be maintained. So far as the period of detention is concerned, I can confirm to the noble Lord, Lord Rosser, that, after a period extending to four months—which is highly unusual—there will be an automatic bail hearing. In these circumstances, I renew my Motion to the House.
My Lords, I am grateful to all those who have spoken, not least to my noble and learned friend Lord Brown of Eaton-under-Heywood and my noble friend Lord Pannick. It is rare for me to find myself in disagreement with them and I bow to their superior legal knowledge in this case. We have probably gone as far as we are able. I am pleased that, during the passage of the Bill, we have been able to raise so many issues. I sincerely hope that the Home Secretary and her officials will focus on these, not least when they concentrate on the reports that they have commissioned from Stephen Shaw and the report on the mental health arrangements commissioned by NHS England. I fear that the writing is on the wall for my hope of progressing further with this amendment during the passage of the Bill. With a heavy heart, I beg leave to withdraw the amendment.
Amendment A1 withdrawn.
Amendment A2 not moved.
Motion A agreed.
85D: Line 3, leave out subsection (1)
85E: Line 7, at end insert—
“( ) A woman to whom this section applies may not be detained under a relevant detention power unless the Secretary of State is satisfied that—
(a) the woman will shortly be removed from the United Kingdom, or
(b) there are exceptional circumstances which justify the detention.
( ) In determining whether to authorise the detention under a relevant detention power of a woman to whom this section applies, a person who, apart from this section, has power to authorise the detention must have regard to the woman’s welfare.”
85F: Line 15, leave out “earlier” and insert “later”
85G: Line 22, leave out subsection (6)
85H: Line 65, leave out subsection (13)
85I: Line 96, leave out subsection (15)
My Lords, the Government have continued to listen carefully to the concerns expressed in both Houses on the issue of detaining pregnant women.
Last night, the other place agreed amendments which will make it clear that pregnant women will be detained for the purposes of removal only if they are to be shortly removed from the United Kingdom or if there are exceptional circumstances which justify the detention and which place an additional duty on those making detention decisions in respect of pregnant women to have due regard to their welfare.
The additional measures we are putting in place, alongside the 72-hour time limit on the detention of pregnant women, will act as extra statutory safeguards which will complement the Government’s wider package of reform in the area of the detention of vulnerable people. This includes the new adults at risk policy, which is given a statutory basis in this Bill. It includes a new cross-cutting gatekeeper function to help provide consistency in decision-making across the business. It includes new safeguarding teams which will provide an extra level of scrutiny of the cases of detained vulnerable people. As we have previously announced, we also intend to ask Stephen Shaw to carry out a short review in order to assess progress against the key actions from his previous report.
I hope that noble Lords will accept this suite of measures as a clear and positive demonstration of the Government’s absolute commitment and desire to ensure that pregnant women are detained only when it is absolutely necessary and as a last resort, with their health and welfare being a foremost consideration whenever a decision is made in respect of their detention. These are solid measures which will have a practical impact but which will also give life to the Government’s desire to end the routine detention of pregnant women, as was set out in the Written Ministerial Statement on 18 April. The 72-hour time limit announced in that Statement was a clear exposition of the Government’s intent, moving to a position in which in no circumstances will a pregnant woman be knowingly detained for longer than a week. That is a major shift from a position in which, theoretically at least and occasionally in practice, detention could persist for a longer period. This will be backed up with the new duty, the clear statement that pregnant women will be detained only for the purposes of quick removal or in exceptional circumstances. I reiterate that, even when there are exceptional circumstances, detention will still be for only the limited period set out in the Bill. It will also be backed up with other measures as I have described. All this represents a new level of safeguarding for pregnant women which, while not going as far as providing an absolute exclusion from detention, ensures that it will occur sparingly and only when it is absolutely necessary.
I turn specifically to Amendment 85J, tabled by the noble Baroness, Lady Lister of Burtersett. The adults at risk policy will effectively replace Chapter 55.10 of the Home Office Enforcement Instructions and Guidance, which is where the existing policy is set out, and will represent a different, and better, way of assessing the circumstances that apply in any given case of a vulnerable person, including cases of pregnant women. The amendments tabled in the other place automatically place pregnant women on a separate footing, making it clear that particular consideration needs to be taken in those cases.
The 72-hour time limit, by virtue of its brevity, will ensure that detention is used as a last resort. On that basis, I am of the view that the current formulation in the Bill, combined with the other measures we are putting in place, provides a high level of safeguard for pregnant women. I beg to move Motion B.
Motion B1 (as an amendment to Motion B)
85J: Line 5, after “are” insert “very””
My Lords, I wish I could warmly welcome government Amendments 85D to 85I, given that they go a small way towards meeting the concerns voiced in your Lordships’ House on 26 April. However, it is only a very small way and, as I will come on to explain, the word “very” has some significance.
I thank the noble and learned Lord for his attempt last week to reach a compromise that would satisfy both sides. Alas, it was not, apparently, possible. As a very last attempt, I therefore tabled this very modest amendment, which would mean that the circumstances justifying detention have to be “very exceptional” rather than simply “exceptional”. This does no more than mirror current Home Office enforcement instructions and guidance which refer to “very exceptional circumstances”. We have just learned that that guidance is to be replaced. In the Commons last night, the Immigration Minister assured MPs that the guidance will also make it clear that detention powers,
“should be used in very exceptional circumstances, underlining our expectations in regard to the use of this power”.—[Official Report, Commons, 9/5/16; col. 486.]
Surely, if the Government want to underline those expectations, they should do so in the Bill itself. Otherwise, they could be sending out entirely the wrong message.
My fear is that, welcome as the new time limit is, unless the legislation states “very exceptional”, some might interpret the softening of language as a signal that it does not have to be quite so exceptional now that it is subject to a time limit. I remind noble Lords that, in practice, we are probably talking about 72 hours plus, because the clock starts ticking not at the actual point of detention but when the Secretary of State is satisfied that the woman is pregnant, if that is later, which it probably will be. Given that too many pregnant women are already detained in far from exceptional circumstances, in contravention of the guidance—as made clear by Shaw and the all-party inquiry into detention—this would be highly regrettable. Experience shows that we cannot rely on the guidance alone to underline expectations regarding degree of conditionality.
I turn to some questions raised by the government amendments. First, regarding Amendment 85E, I repeat what was said in the Commons by David Burrowes MP:
“However, we still need to ask about the small word ‘or’ in amendment (b) to Lords amendment 85C. Why does it make the distinction between
‘the Secretary of State is satisfied that—
the woman will shortly be removed from the United Kingdom, or
there are exceptional circumstances which justify the detention’?
Surely, pregnant women should be detained only if there are exceptional circumstances and they can be removed shortly. Why are we distinguishing between the two? If the aim of detention is to remove people and detention should be a last resort, given the new 72-hour limit on detention, when would detention not be exceptional and removal forthcoming? It is important that the Government clarify that”.
He expressed the fear that,
“the measure leaves the door open for the excessive detention of pregnant women”.—[Official Report, Commons, 9/5/16; col. 498.]
That is my fear, too. Given that it was not possible for the Immigration Minister to answer Mr Burrowes yesterday, I trust that the Minister will be able to provide an answer now.
Secondly, could the noble and learned Lord clarify, for the record, the purpose of the qualifying phrase, “apart from this section” in the second paragraph of Amendment 85E? Fears have been expressed by those more expert than I that it would appear to be saying that the Secretary of State does not have to have regard to the woman’s welfare. I am sure that that cannot be the case. I cannot see why anyone should be allowed to authorise detention without having regard to the woman’s welfare. I welcome the fact that having,
“regard to the woman’s welfare”,
is now in the Bill. I hope that he can provide reassurance.
I turn to the key sections of Amendment 85C, which the Government have rejected out of hand. These aim to incorporate key elements of the family returns process, which successfully uses engagement to try to resolve cases without the use of detention. Ministers have repeatedly explained, in the words of the Immigration Minister, that,
“we are using precisely that model and approach for pregnant women”.—[Official Report, Commons, 25/4/16; col. 1195.]
Yet their rejection of this part of Amendment 85C out of hand suggests a mindset that is not attuned to the family returns process, in which it is not assumed that removal requires prior detention. I ask the Minister: if the Government are using precisely that model and approach, why have they refused to countenance writing key elements of it into the legislation? Will he commit now to drawing up guidance that will ensure that the treatment of pregnant women does indeed follow the family returns process model? Otherwise, we have no way of ensuring that this model will be followed. I hope that this would reduce the need for detention but where it does still take place, clear guidelines following the family returns model would at the very least ensure that notice is given so as to minimise the stress involved in the process of being taken into detention, which can have a damaging impact on the mental and physical health of pregnant women. It is simply not good enough for the Government to talk about modelling the approach on the family returns process without giving Parliament any idea of how they plan to operationalise this.
On 26 April the Minister stated that,
“as a matter of fact and practice, all persons who are subject to removal are given notice of liability for removal, and vulnerable women, including pregnant women, receive a further notice via removal directions”.—[Official Report, 26/4/16; col. 1095.]
That sounded very reassuring but the notice of liability for removal can be three months in advance of removal and the further notice is sent after detention. There is no notice sent of removal into detention as opposed to removal out of the country, and I fear we have been talking at cross purposes on this. Will the Minister therefore now commit to a full review of the process of removal into detention, including how the woman’s medical and welfare needs are taken into account? When we last discussed this, I cited some dreadful examples of how pregnant women were in effect treated like animals during the journey into detention, potentially with serious implications for their physical and mental health.
On 26 April the Minister seemed to suggest that some of our concerns were in effect resolved because only one pregnant woman is currently being held in detention. Of course, for those of us, including Stephen Shaw and the members of the all-party group inquiry, who believe that pregnant women should not be detained on principle, one pregnant woman in detention is one too many. Leaving that aside, the numbers of pregnant women in detention have always fluctuated and we do not know the total number who have been detained so far this year. I find it worrying that the Home Office is refusing to comply with an FoI request submitted by Women for Refugee Women for the publication of the statistics on the numbers detained, the length of detention and outcomes. In the Commons debate on 25 April, the Immigration Minister said he would reflect on how best to create “greater transparency”. I then suggested that one way would be to commit now to making these statistics on the detention of pregnant women available for public scrutiny on a regular basis, as called for by bodies such as Women for Refugee Women and the Royal College of Midwives. But the Minister did not respond on that point and I would be grateful if he could do so now.
I know there is a reluctance to extend the ping-pong process too far but when your Lordships’ House passed Amendment 85C, despite the technical and other objections raised by the Minister, I took that as acceptance of the need to write into the Bill the safeguards necessary to ensure the protection of the welfare of pregnant women, whatever our view on the principle of their detention. I do not believe those safeguards are strong enough. This is a much more modest, even minimalist, amendment. I hope the Government will be able to accept it because it does simply what the Immigration Minister says is the Government’s intention, but with the force of primary legislative backing. I beg to move.
My Lords, I support the noble Baroness, Lady Lister, although I would say to her that there are rules about transporting animals.
In the Commons, as the noble Baroness said, the Minister referred to—and indeed relied on—the guidance providing for “very exceptional circumstances” to meet expectations. However, guidance can of course be changed much more easily than primary legislation, and it is easier not to follow. I share the concern of the noble Baroness that the legislation must not weaken the process.
I was also puzzled to read in the government amendment that the person who authorises the detention —I shall come back to that—must have regard to the woman’s welfare, not, as the Minister said last night at column 486 of Hansard, “due regard”. As we have heard, the current equivalent guidance is not effective enough and I do not see that there will be any impact from putting pregnant women into a separate category within the guidance. I agree with the point made by David Burrowes and the noble Baroness about Amendments (a) and (b), rather than (a) or (b). I, too, had two points of concern about interpretation. The noble Baroness has referred to the phrase “apart from this section”. I read this as applying to the person with the power to authorise, but I do not know what,
“a person who, apart from this section”,
means. I hope the Minister can help me.
The other question concerns the term “shortly” in paragraph (a) of Amendment 85E. The Secretary of State needs to be satisfied that,
“the woman will shortly be removed from the United Kingdom”.
In this House we are accustomed to the term “shortly”. It is something of an Alice in Wonderland term: it means what it is meant to mean on the occasion when it is mentioned. Will the Minister help us by providing greater precision?
My Lords, I shall detail the House only briefly. I am most concerned about this issue. I fear that the Government have completely overlooked a very important point. You are not just detaining a pregnant woman, you are detaining the foetus inside that pregnant woman. The effect on that foetus is something about which science is increasingly concerned. The recent science of epigenetics tells us clearly that the foetus at certain stages during pregnancy is extremely vulnerable to the environment of the mother. Indeed, I have been involved in this area of research at Imperial College, and I shall refer briefly to research going on not only at Imperial but at the University of Singapore, which I shall visit later this week, and McGill University in Canada, among other places.
It turns out that at a certain stage in pregnancy, if a woman’s stress hormones, particularly cortisol, are raised, the effect on the foetus may be profound. Working after the ice storm in Ontario some years ago, Michael Meaney undertook cognitive tests on infants aged five, who had effectively been interned within their own houses because of the darkness and lack of electricity over a period of time. He found significant cognitive impairment. There is also some evidence that after massive stress to the mother, some children may behave aberrantly when they grow up —particularly, for example, being more aggressive.
Unfortunately, at this stage the science is not absolutely clear but there is a massive amount of evidence from work on rodents and some other animals. The evidence from human work is increasingly that certain stages of pregnancy—for example, once the foetus is identifiable in the uterus, usually at around 22 to 26 weeks—are a particularly vulnerable time. That is when stressing a woman may have a severely adverse effect.
For that reason, the Government need to recognise that they may be responsible for a heritable effect on that child and possibly even on the grandchildren of the mother. Until that is firmly worked out, I beg the Government to consider that internment, if it must be done at all, must be done only under the most serious circumstances. We cannot go back for women who have previously been detained in prison and other places, but in future we must make sure that we make law which is humane and amendable, so that we cause the minimum amount of damage to future generations.
My Lords, I will speak very briefly to support the amendment moved so well by the noble Baroness, Lady Lister, this afternoon. I supported her on earlier occasions when we debated these issues. I am particularly pleased to follow the noble Lord, Lord Winston, who has returned us to an aspect of the debate which we discussed at earlier stages.
Members of your Lordships’ House may recall the remarks of the noble Baroness, Lady Neuberger, during our earlier debates. She focused on the effects on the unborn child of being detained in these stressful circumstances. I referred to work by the late, eminent psychiatrist, Professor Kenneth McCall, who described the effects later in life on children who had been affected by traumatic events that they had experienced in the womb. On the other side of that coin, of course, the world-famous violinist Yehudi Menuhin said that he believed that he learned his love of music during the time that he was in his mother’s womb. So it may be that the empirical evidence needs to be extended and much more work needs to be done around these things—but our own common sense and knowledge of our own human development probably take us in that direction.
But this is not just about concern for the unborn child. The noble Baroness quite rightly reminded us of the recommendations of Stephen Shaw, which were at the very heart of the debate when we looked at this earlier in our proceedings. He of course recommended that there should be an absolute ban—so this falls a long way short of his recommendations. The noble Baroness, Lady Lister, in her phrase, “very exceptional”, is reminding the Government that it cannot be right for us to have pregnant women held in detention in these ways.
I was particularly pleased, like the noble Baroness and the noble Baroness, Lady Hamwee, to read the remarks of the Conservative Member of Parliament for Enfield, Southgate, David Burrowes, who spoke so well in the other place yesterday. I hope that when the noble and learned Lord comes to reply, he will respond to the concerns that David Burrowes raised and to the remarks of the Royal College of Midwives—referred to earlier by the noble Baroness—which were quite categorical in saying that we should never keep women in these circumstances.
I have one or two questions to put to the noble and learned Lord. What kind of pre-departure accommodation will be made available when a pregnant woman is being held? Will he say a word about that and will he talk about how those particular needs will be met? Will he also assure us that pregnant women will not, for instance, as has happened in the past, be picked up in dawn raids, put in the back of vans and taken miles away to accommodation, with appalling consequences for the women in those circumstances? There are accounts of nauseous experiences, of vomiting and of people being incredibly distressed by those kinds of experiences. This should be in very exceptional circumstances, as the noble Baroness said.
Finally, I underline the point made by the noble Baronesses, Lady Hamwee and Lady Lister, about the second part of Amendment 85E. An odd phrase has been included at this late stage to say that,
“a person who, apart from this section, has power to authorise the detention must have regard to the woman’s welfare”.
Those words—“apart from this section”—are, at the very best, ambiguous, and I really cannot see what point they have. Could the noble and learned Lord enlighten us when he comes to reply?
Perhaps I could add to the point just made and express the hope that the noble and learned Lord will not only respond to questions raised in this short debate in this House but be doubly determined to do so. I find it extraordinary that when our amendments were discussed in the Commons last night, although they have the not surprising procedure that a Minister opens the debate, there was no reply by a Minister at the end of the debate. So all the legitimate questions raised in that debate after the Minister had finished speaking were not answered at all by the Government. I know very little about House of Commons procedures —that is quite obvious—but it is certainly a fairly remarkable procedure to have a debate where questions are asked of the Government but there is no Minister replying at the end. I hope that that is a defect that the noble and learned Lord will be able to rectify when he replies to this debate.
We accept that the Government have moved on this issue to a position of not allowing the detention of pregnant women beyond 72 hours—or up to a week with the Secretary of State’s approval. This House of course wanted the Government to go further and provide additional safeguards, which were reflected in the amendments sent to the Commons. In the Commons last night, the Minister said that the Government had tabled amendments that made it clear that,
“pregnant women will be detained for the purpose of removal only if they are shortly to be removed from the UK or if there are exceptional circumstances that justify the detention”.—[Official Report, Commons, 9/5/16; col. 486.]
As has been said, the Minister went on to say that the guidance will also make it clear that the guidance would also make it clear that the power to detain should be used only in very exceptional circumstances. Why does the government amendment passed last night in the Commons refer to “exceptional circumstances” and not to “very exceptional circumstances”, which is and will continue to be used in the guidance?
What in the Government’s view is the difference in this context between “exceptional circumstances” and “very exceptional circumstances”, since it is they who have decided not to use the same wording in the Bill as is and will continue to be used in the guidelines? Through her amendment, my noble friend Lady Lister of Burtersett seeks a credible and reassuring answer to that question, and I hope that the Government can provide it.
My Lords, I will begin by answering the question just posed by the noble Lord, Lord Rosser. The provision does refer to “exceptional circumstances”. The guidance as it exists talks of only “very exceptional circumstances” applying for the detention of pregnant women, and that will continue to be the policy that is applied in the context of the provision. I reiterate what was said in the other place last night: it is only in very exceptional circumstances that it will be considered appropriate for this provision on detention to be employed.
In the context of drafting statutory provision, it was not considered that the addition of such words as “most”, “much” or “very” would add anything to the proper construction of the provision. However, the policy guidance is there. It is absolutely clear, and both in this place and the other place it has been said that the policy will apply in the context of “very exceptional circumstances”.
With respect, the noble Lord makes my point for me. It is questionable whether there is any distinction to be drawn between exceptional, properly understood, and very exceptional or most exceptional. That is what lies behind the manner in which this provision has been drafted. Nevertheless, to dispel doubt in the minds of others, it has been said in the guidance that, as a matter of policy, the term “very exceptional” may be applied when approaching the application of this provision to the detention of pregnant women.
My Lords, with the leave of the House, I wish to pursue this issue. There must be a difference, otherwise it would not be necessary to use the word or the distinct phrases. Are the Government not in danger of falling foul of their own legislation by applying guidance that is different from the legislation?
I do not accept that. The purpose of the policy guidance is to lend emphasis to the test that is being applied, and that is what is happening here.
I shall move on to address a point raised by the noble Baronesses, Lady Lister and Lady Hamwee, which concerned the reference to the welfare of the pregnant woman. I emphasise that this provision is there as an additional safeguard. I will not claim that the draftsmanship of this clause is distinguished by its elegance, but its effect ultimately is clear.
In circumstances where it is thought that a pregnant woman may be detained, the party who may be exercising the right to detain will also have to have regard to the welfare of that pregnant woman before a final decision is made. For example, in circumstances where the pregnant woman has arrived at a remote port and there is nowhere in the vicinity that could properly be utilised to detain her when she is in a state of pregnancy, that factor must be taken into account—indeed, it must be a determining factor—in deciding whether to detain her. Somebody in a state of pregnancy arriving, say, at Heathrow can and should be detained because the circumstances are very exceptional and there are facilities to detain her in her state of pregnancy. However, if somebody arrived at a remote port where it was felt that there were very exceptional circumstances that would justify detention but where there was no suitable place for her detention, having regard to her welfare would mean that detention would not take place. I hope that that assists in explaining the purpose of the provision. It is an additional safeguard.
I turn to the question of and/or, which was raised in the context of whether or not detention should take place. Of course, the intended effect of these provisions, so far as pregnant women are concerned, is that they will, like all detainees, be detained only for the purposes of removal. Because there will be a time limit on the detention of pregnant women, all cases of detention of pregnant women will be necessarily short. Some of these cases will have exceptional circumstances attached but, by definition, not many. For example, cases at the border are quite likely not to have exceptional features. The clause as drafted therefore allows for the detention of pregnant women only when they can be removed quickly, or when they can be removed and exceptional circumstances pertain. It is merely to allow for the two circumstances—namely, that they can be quickly removed, or that they can be quickly removed and exceptional circumstances pertain. I hope that that explains the way in which that particular provision is drafted.
The noble Baroness, Lady Lister, asked about a further review. With respect, we have already had the review from Stephen Shaw, and he will be instructed to carry out a further short review about the implementation of these provisions. No additional or alternative review is being contemplated. Of course, the policy guidance that we have has been addressed already. The noble Baroness also referred to an FoI request. I cannot reply directly with respect to that request for the relevant statistics. But, of course, there is a process that can be followed through to a conclusion to determine that the FoI request is responded to in due time and in appropriate terms.
The noble Lord, Lord Winston, raised a point echoed by the noble Lord, Lord Alton, on the treatment of pregnant women and the effect of stress on them. Who can doubt how stressful it will be for a person who travels unlawfully to the United Kingdom in a state of pregnancy and then attempts unlawfully to secure entry to the United Kingdom? That alone is a source of stress. The question is how we deal sympathetically and effectively with such persons, particularly when we find that they are either vulnerable or pregnant. What we have developed here is a rational and reasonable approach to that very difficult question.
Finally, I address the question of facilities in the context of a planned departure. Our continuing view is that immigration removal centres remain the most appropriate places to detain pregnant women. Yarl’s Wood provides a high level of care for pregnant women. NHS midwives are available; general practitioners and nurses can be accessed seven days a week; there are strong links with local maternity services; and support is provided by a pregnancy liaison officer. In addition, there is a new care suite, staffed by a dedicated female member of staff, to attend to women in the state of pregnancy. Very few pregnant women are detained in these circumstances, but suitable and sufficient facilities are available and, as I observed earlier, where they are not for some reason available the welfare of the pregnant woman will be paramount.
I am grateful to the Minister. He will recall that he has been asked by three of us about those words that appear in the final section, in the penultimate line of the amendment, “apart from this section”. I wondered whether he could tell us why they had been included and what they add.
I did say that the relevant provision was not distinguished by its elegance. However, if noble Lords read the clause as a whole, it is intended to refer back to the person with the power of detention in terms of the Bill. How it is drafted at that point is dictated by how that is described in an earlier clause of the Bill.
Forgive me for intervening once more, but I do not feel at all confident about the question of incarceration. Arriving on these shores, perhaps illegally, and then being incarcerated, is very different from arriving on these shores with hope. What the evidence of the model shows in Canada is that it is the incarceration—in their own houses, even—that caused the stress to these women that resulted in the changes to the foetus that were subsequently inherited. I beg the Minister to consider that point when he finally sums up.
I had rather summed up, but I can say to the noble Lord, Lord Winston, that of course there are elements in the journey of such a person that will cause stress. Detention may be a factor in that but, in the round, we have to come to a reasoned conclusion as to how we deal with unlawful entry into the United Kingdom.
Can I make the Minister an offer? He is obviously as uncomfortable as I am with the drafting of this clause. Can we find a way in which to get it to mean what—whether we like it or not—he is telling us that we ought to understand it to mean early in the next Session? Let us tack it on to something that will come to us fairly shortly.
My Lords, I am very grateful to everyone who has spoken, and particularly to my noble friend Lord Winston, who made a very powerful point. It has reinforced the sense that this House is very concerned about this issue and not convinced that the welfare of pregnant women and the foetus inside them is being protected by the concessions that the Government have made.
I am grateful to the Minister for addressing all the questions that were asked. I do not think that it is just a question of elegance; it is a question of comprehensibility. I have to say that I did not understand a word of one of his answers, but that is probably me, and I shall put a towel over my head and finally understand it when I read it in Hansard. It does have resonances of Humpty Dumpty and words saying what I say they mean, and the,
“question is … which is to be master—that’s all”.
Unfortunately, it is the Government who are master and who have the power to decide these issues. The answers that I did understand from the noble and learned Lord were very disappointing. I have still not heard a good or proper reason as to why, if it is good enough for the guidance and it means something in the guidance, it is not good enough to be in the legislation. I am still worried that someone looking at both of them will think, “With regard to the legislation, the Government have actually gone backwards”.
I was not asking for a whole new review: I was asking for a very focused review of the process by which a woman is taken from her home into detention. As I understand it, there has already been a commitment to look at transport; I am just asking for that to be broadened out to the whole process. It is not a big thing, and I have still not heard any explanation as to how this is going to be modelled on the family returns process. The noble and learned Lord said there was not going to be any further guidance on this, so it is just an empty claim unless someone can show us otherwise.
I hope that the noble and learned Lord, the Immigration Minister and the Home Secretary will take this away and read what has been said in this House. My noble friend Lord Rosser pointed out the really strange Commons procedures that do not allow the Minister to respond to perfectly good questions, but we at least have a chance to do that in this House. I hope that the people in the other place will all read what has been said in this House and will think about how, within the constraints of the legislation as it is, we could make this a more humane process. As we have heard, there is a lot at stake here. My noble friend Lord Winston said that it could be responsible for a heritable effect on the child. That is very serious, so I hope that this will be looked at further, even if it cannot be in the context of actual legislation. That said, like the noble Lord, Lord Ramsbotham, I recognise when we are coming to the end of the road. Therefore, like him, with a very heavy heart indeed, I beg leave to withdraw the amendment.
Amendment B1 withdrawn.
Motion B agreed.