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Lord Williams of Mostyn moved Amendment No. 77C:

Page 27, line 31, leave out subsection (13).

The noble Lord said: This amendment is grouped with Amendments Nos. 122A, 122C, 122F, 122N, 203A and 210A. These are routine drafting amendments. A definition of the special immigration appeals commission is to be inserted in the interpretation clause, Clause 115, which makes the other references elsewhere in the Bill redundant. I beg to move.

On Question, amendment agreed to.

Lord Hylton had given notice of his intention to move Amendment No. 78:

Page 27, line 37, leave out subsection (15) and insert--
("(15) For the avoidance of doubt, the provisions of the Bail Act 1976 regarding the criteria on which bail may be granted shall apply to applications for bail under this Act and under the 1971 Act.").

The noble Lord said: This amendment provides for a presumption in favour of granting bail for detainees similar to that which already exists for persons charged with criminal offences. It is a matter that the Government undertook in another place to include in the Bill. They have honoured that commitment in Amendment No. 80A. Therefore I do not need to move this amendment.

[Amendment No. 78 not moved.]

Clause 36, as amended, agreed to.

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Clause 37 [Location of bail hearings]:

Lord Hylton moved Amendment No. 79:

Page 28, line 1, leave out paragraphs (c) and (d).

The noble Lord said: Detention centres and prisons are not acceptable places for the hearing of bail applications. These applications should take place in buildings to which the general public have full access, such as court premises. If it can be shown that some courts which would otherwise be suitable are already fully used, the Secretary of State should designate other buildings which have full public access. It is also essential that the representatives of detainees should be able to take instructions in private, or with a reasonable degree of privacy. This may not be possible if there is only one room for the whole bail hearing process. I beg to move.

Baroness Williams of Crosby: I recognise the force of the remarks of the Minister about people being shunted to and fro. In reply to an earlier amendment he said that if neither prisons nor detention centres were thought to be proper places in which to hold hearings it would mean that people would again have to be moved around.

However, there is a balancing consideration. It was mentioned by the Minister of State, Home Office, at Committee stage in another place. He acknowledged that it was important that bail hearings should be conducted in public. The Minister will know that with some detention centres, and even more prisons, it is difficult to make access easy for the public. It is sometimes difficult to enter prisons without undergoing a fairly lengthy procedure.

When the Minister responds, perhaps he will say whether, as far as possible, bail hearings will be avoided in detention centres, and in particular in prisons. If not, will access be made available for the public to attend given the importance of the principle of a public hearing?

Lord Clinton-Davis: The noble Lord, Lord Hylton, and I were gently assailed--it is the only type of assailing my noble friend the Minister knows--on the amendment. The point that the noble Baroness, Lady Williams, has just made is the reason why I wanted to probe my noble friend's thinking on the subject.

The attendance of the public at court hearings is essential in ensuring that justice is done. That is why our criminal courts are rightly open to the public. The right of a defendant to be heard and the right of the prosecution to outline why a person should not be free are essential to our democratic structure. If there is an overwhelming reason for departing from that principle, I should be interested to hear it. I assure my noble friend that from my point of view, as a supporter of the amendment, it is merely a probing one. I shall listen with interest to what he says. If he wants to assail me in the future, I do not mind.

Lord Renton: I hope that I do not embarrass the Minister by saying that I hope that he does not accept the amendments and that he agrees that the clause

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should stand part. It would save a lot of travelling for people in a prison or detention centre who want bail if their hearing could be heard wherever they are rather than having to go some miles to the court at which the case had been heard and where the application to a court of similar standing could be made. If the case had been dealt with at a court where a High Court judge was sitting--that would not usually happen unless there was another serious charge involved--a considerable distance might need to be travelled, involving a great deal of public expense. The clause could be helpful to all concerned.

Lord Clinton-Davis: Before the noble Lord sits down, would he extend that argument to ordinary criminal proceedings?

Lord Renton: It is arguable that that could be done. I have not seen a similar clause on bail before. I do not know whether that is due to my ignorance or whether this is a precedent. If it is a precedent, it is a good one.

Lord Avebury: The important issue is whether the representatives of the asylum applicant and their friends and supporters in the community will have easy access or whether the new courts to be opened in the detention centres will be so remote that there are difficulties for the whole process. Perhaps the Minister will tell us whether the Home Office's plans for the reconstruction of Aldington include provision for a court and what facilities there will be for the attendance of the applicant's representatives and their friends among the public. I am not familiar with the geography of the area and I do not know how easy it is to get to Aldington. I know that it is somewhere in the Rochester area. If it is possible to get there by public transport without great difficulty--there is a very good service from London to Rochester--there is no major objection in principle to having hearings there. However, if a new detention centre was built in a remote part of the country and a court was put there for the purposes of such hearings, that would be a different kettle of fish. This is a practical question rather than one of principle.

Viscount Bridgeman: I hope that the amendments are not accepted and that the clause stands part of the Bill. I hope that the flexibility in the clause will be maintained. I have particular regard to the desirability of minimising long-distance transportation in Black Marias. As was mentioned on the previous amendment, it is particularly important that children should not have to travel long distances in such confined accommodation.

7.15 p.m.

Lord Williams of Mostyn: My noble friend Lord Clinton-Davis was right and I am entirely happy to agree with him. Clause 41(4) deals with his point about open justice. It requires magistrates to seek an open court unless the interests of justice require otherwise or, as we plan to amend it under Amendment No. 96C, compelling reasons of confidentiality apply. I can

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envisage some circumstances in which a hearing might need to be held in private to protect the bail applicant. For example, they might be fearful of pursuit.

I am happy to repeat the important point that if arrangements cannot be made to hold a routine bail hearing in a convenient courtroom, the alternative of conducting hearings in a detention centre should be available. Such facilities should be used only if they maintain the independence and dignity of the court. Those qualities depend substantially on access by the public and by representatives and supporters. Our intention is that hearings would be held in detention centres only if a suitable hearing room was set aside, public access was assured and representatives had all the appropriate facilities for consulting with their clients. In most cases that would require discrete construction work. If Aldington is to replace Rochester, as we anticipate, we shall be looking for provision to be made for discrete facilities for hearings, external access and good hearing rooms to avoid the cost and inconvenience of escorting.

The motive is not to avoid cost. But we should not overlook the point made by the noble Viscount, Lord Bridgeman. Travelling distances in what is called a sweat wagon is a very disagreeable experience. Even sitting in one for half an hour on a hot day--which I have tried--is very demoralising. We are talking about unusual circumstances. When appropriate, subject to the safeguards I have accepted, hearings in the detention centre will be available as an alternative. Given that explanation, I hope that the amendments will not be pressed.

Lord Renton: Before the Minister sits down, I wonder whether he will look at Clause 41(4) for a moment as he has referred to it. It says:

    "A magistrates' court dealing with a reference under Section 36 must sit in open court unless"--

I want to emphasise this point--

    "it considers that the interests of the administration of justice require it not to do so".

The interests of the administration of justice include the cost of administration. Should not the provisions of Clause 37 apply?

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