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29

Page 17, line 46, leave out from beginning of line to ("as") in line 1 on page 18 and insert--


("(2) Where the sheriff finds a person to be in contempt of court in respect of the failure of a person to comply with an order made by the sheriff to which this paragraph applies--
(a) notwithstanding section 15 of the Contempt of Court Act 1981, the sheriff shall not commit the person to prison; and

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(b) the sheriff may grant decree in favour of the Commission for such amount of any fine imposed for the contempt").
30

Page 18, line 5, at end insert--


("(3) If the Commission applies to a county court or, in Scotland, to the sheriff to enforce an order to which this paragraph applies, the court may modify the order.").
31

Page 18, line 8, leave out from ("document") to end of line 14 and insert ("to which a notice under paragraph 4 or 13H, or an order under paragraph 5 or 13H(3), relates; or


(b) in complying with--
(i) a notice under paragraph 4 or 13H;
(ii) a non-discrimination notice;
(iii) an agreement under section 5; or
(iv) an order of a court under section 5(6) or under any provision of this Schedule,").
32

Page 19, leave out lines 3 and 4 and insert ("--


(a) supplementing Part I or II of this Schedule in connection with any matter concerned with the conduct of formal investigations or the procedure for issuing non-discrimination notices; or
(b) amending Part IIA of this Schedule in relation to the procedures for finalising action plans.").

Baroness Blackstone: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 12 to 32.

Moved, That the House do agree with the Commons in their Amendments Nos. 12 to 32.--(Baroness Blackstone.)

On Question, Motion agreed to.

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now adjourn during pleasure until 8.40 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.5 to 8.40 p.m.]

Immigration and Asylum Bill

House again in Committee.

Clause 38 [Power to grant bail]:

Lord Williams of Mostyn moved Amendment No. 80B:


Page 28, line 10, leave out from beginning to ("is") in line 14 and insert--
("(1) Before releasing a person on bail under section (General right to be released on bail), the court may require--
(a) a recognisance or, in Scotland, a bail bond to be entered into, or
(b) security to be given by the person bailed or on his behalf.
(2) The court may impose a requirement under subsection (1) only if it considers that its imposition is necessary to secure compliance with any condition to which bail granted under section (General right to be released on bail) will be subject as a result of subsection (3), (3A) or (3B).
(3) Bail granted under section (General right to be released on bail) by the Commission is subject to a condition requiring the person bailed to appear before it at a specified time and place.

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(3A) Bail granted under section (General right to be released on bail) by a court or other appellate authority (other than the Commission) dealing with an appeal by the person bailed is subject to a condition requiring him--
(a) to appear before the court or authority at a time and place specified by it; and
(b) if the appeal is dismissed, withdrawn or abandoned, to appear before an immigration officer at such time and place as may be notified to him in writing by an immigration officer.
(3B) In any other case, bail granted under section (General right to be released on bail)").

The noble Lord said: In moving Amendment No. 80B, I shall speak also to Amendments Nos. 84, 85A, 86, 86A to 86F and 210C.

The purpose of the insertion of subsection (1) in Amendment No. 80B is to add to the range of alternatives to detention the option of granting bail subject to securities being given by the person bailed or on his behalf. This power to require security is consistent with the Bail Act 1976 as amended recently by the Crime and Disorder Act 1998.

I stress that this is an option only, not a requirement. It is quite likely that in the future people will be released on bail without monetary sureties or securities, but as an alternative to detention, the lodging of securities will be justified in some cases. I hope this will find favour with the Committee because it means that, given the additional safeguard of securities, some will be released who might otherwise have been detained.

Subsection (2) specifies that the court may impose a requirement under subsection (1) only if it considers imposition is necessary to secure compliance with the mandatory condition to appear in the future before the court or an immigration officer, as appropriate. This will prevent securities, recognisances or bail bonds from being required by the court unnecessarily or disproportionately.

Subsection (3), equivalent to current subsection (5), allows for a bail condition in Special Immigration Appeals Commission cases requiring a person to appear at a specified time and place before the commission.

The purpose of subsection (3A) is merely to ensure that a person bailed to appear before the appellate authority is also bailed to appear before an immigration officer, so that if the appeal is dismissed, withdrawn or abandoned that person remains subject to bail conditions until such time as further action may be taken by the immigration officer. Without this amendment, the person would have to be re-detained at the court, which might in some cases be unnecessarily harsh, or, alternatively, he would be free to leave, with the risk of avoiding enforcement action. Subsection (3B) is consequential.

The new clause provided for by Amendment No. 86F introduces powers of forfeiture of any security taken by the court under amended Clause 38. Forfeiture will be allowed only where the mandatory condition to appear at a specified time and place has been broken. It is regrettable of course that any amount should be forfeited, but bail in the absence of sanction becomes

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meaningless in some cases and therefore would undermine the effectiveness of what we propose. We hope that incidences of breach will be rare.

Importantly, the new clause also provides an opportunity to challenge any forfeiture where a person had reasonable cause not to appear. Where forfeiture is ordered, the amount of money forfeited need not be the full amount of the security given, as the court has a discretion--which I hope the Committee will welcome--to take any amount up to the total. It need not take any of the security at all if it thinks it appropriate. Amendment No. 210C ensures that any forfeited securities will be paid into the Consolidated Fund--not the Dome fund. I commend Amendments Nos. 86F and 210C to the Committee.

I turn now to Amendment No. 84. The courts will have a wide discretion regarding whether a recognisance or security should be taken from or on behalf of the detainee before bail is granted. Where a monetary surety or security is required, this must only be where the court considers that imposing it is necessary to ensure compliance with the requirement to appear. The court will ensure that the level of surety or security is reasonable in all the circumstances. It will obviously take account of the material circumstances of a detained person for these purposes. Only a small security may be necessary in respect of a person of very limited means. But I revert to the point made by my noble friend Lord Clinton-Davis earlier: these are matters for judicial decision; the judiciary is well able to make these determinations.

It should be borne in mind that there are those who look on bail securities or sureties as part of the cost of entry into the United Kingdom. I regret to say that sometimes such sums are catered for as part of a facilitation package. This is an example of the kind of further consideration to be borne in mind by the court when deciding what level of security or surety to set. I cannot therefore support this amendment.

The purpose of Amendment No. 85A is to refer to the new clause set out in our Amendment No. 80A, introducing a presumption of bail, as we have already discussed. This is because the power to release on bail under Part III is contained within the text of that new clause.

I cannot support Amendment No. 86. It is intended that the determination of the court should be made in English, as in criminal cases, to ensure that there is less likelihood of dispute later over what the court intended. I appreciate that this is a relatively small matter, but it is important. One has the experience of--I take at random--the Indian sub-continent, which has a large number of different dialects and sub-languages. It has proved very difficult sometimes to decide on precisely what was meant.

I stress that it is intended that where necessary an interpreter will be present at the hearing to explain the proceedings to the detainee fully, in a language that he understands. The court will notify the terms of any recognisance, security or bail bond, together with any other conditions imposed, in writing to the detainee and--again importantly--to his representative. Where

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necessary of course the interpreter will notify the detainee of terms and conditions orally in a language that he understands. I hope this will persuade the Committee that it is our firm intention that everyone leaving a hearing will leave with a clear understanding of what has been agreed.

Amendment No. 86A simply removes Clause 38(5) as the provisions of that subsection are now incorporated into the government amendment of Clause 38.

Amendment No. 86B replaces the existing subsection (7), but new Section 38(7), (7A) and (7B) have the same purpose. A new version of subsection (7) was required, first, to make reference to the new power to require a security to be given and, secondly, to ensure that the drafting of the subsection was consistent with the fact that monetary conditions will not always be imposed by a condition of bail.

This clause shall have effect where the court decides not to release a person on bail because the person could not at that time satisfy the conditions of bail. It will be able to set conditions which, when fulfilled, will lead to the person's release in the future. It might, for instance, take a person a few days to identify a surety required by the court. Subsection (7B) provides that once the person has satisfied these conditions he must be released.

Amendment No. 86C is to make sure that a person liable to detention but released on bail is in a no more advantageous position in respect of taking employment than he would have been if released on temporary admission.

A person granted temporary admission under paragraph 21 of Schedule 2 to the 1971 Act may be subject to such conditions as to residence, employment or occupation and reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer. If, on the other hand, the immigration officer decides that the person concerned should be detained but that person is subsequently released on bail, although he may be subject to restrictions as to residence or reporting to the police or an immigration officer, he may not be subject to restrictions as to employment or occupation. Subsection (8) corrects that anomaly by ensuring that the same restrictions as to employment may be imposed in respect of release on bail as can already be imposed in respect of temporary admission or release. It must be right that a person released on bail should not be at an advantage. Subsection (9) makes any restriction on employment under subsection (8) in respect of a person released on bail a condition of that bail. So if the bailed person were to be in breach, he would be liable to arrest under Clause 40.

Amendment No. 86D clarifies that a recognisance will be liable to forfeiture only if the person fails to appear at the specified time and place. Amendment

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No. 86E clarifies what is meant by the term "mandatory bail condition". I commend Amendments Nos. 86A to 86E to the Committee.


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