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Baroness Williams of Crosby: Before the Minister sits down, will the magistrates' attention be drawn to the bail applicant having a history of torture? The purpose of the amendment is to ensure that that is done. Perhaps the Minister can give an assurance that information will be drawn to the attention of magistrates if it is not known to them.

Lord Falconer of Thoroton: That consideration will be drawn to the attention of magistrates in their training. I cannot give any assurance about what information will be drawn to the attention of a magistrate or magistrates in an individual case. In most cases where asylum is sought, there will be evidence of some sort of persecution or threat of persecution. The evaluation of that evidence is for people other than the magistrates hearing the application for bail. It is unrealistic to ask a Minister to give an assurance that in every case, a history of torture, if there be one, will be drawn to the attention of the magistrates. They will be trained in the sort of thing to look out for--but I am not in a position to take it much further than that.

Lord Avebury: It is most helpful that the UNHCR will be involved in the magistrates' training programme. It is in the best position to ensure that magistrates are fully alive to the problems that particularly affect asylum seekers--to which magistrates are not used in the course of their normal work.

I want to ask the Minister about the checklist because it seems likely that it will be based on Amendment No. 80A, which lists the exception to the presumption of bail in general terms. I said to the Minister on a previous occasion that it struck me that this was not much of an advance on the present situation because failure to comply with one or more of the conditions of bail, or any recognisance or bail bond, was exactly the reason why people were held in detention on the sole and unsupported opinion of the immigration officer. The noble Lord, Lord Clinton-Davis, pointed out that the courts would have to take into consideration why the immigration officer held that opinion. The Minister reinforced that by pointing to the words "substantial grounds" immediately preceding the individual

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conditions. If the checklist is to consist solely of a list of headings one is back to square one and one will not be talking about substantial grounds for believing that the applicant would commit one of the matters dealt with in subsections (2) or (3).

But I also draw the attention of the noble and learned Lord, Lord Falconer, to the words of paragraph 12.7 of the White Paper:


    "Taking into account that most people who are detained are held for just a few hours or days, initial reasons will be given by way of a check list".

Does that not imply that the reasons given for a person's detention at the first hearing after seven days should be different from the subsequent hearing after 30 days? It is perfectly reasonable that after seven days the full facts will not be known and the basis for the person's detention, which at that point will be concerned largely with questions of identity, cannot be expressed in very much detail.

However, after 30 days when the applicant has had an opportunity to present his case as to why he should be released and the authorities have had an opportunity to consider it, should not the authorities be made to go a little further than a bare checklist? If there are substantial grounds, as referred to in Amendment No. 80A, why can they not be set out in the written notice which, according to an undertaking by the Minister, will be issued? The Government have not really addressed the difference in the situation between the hearing after seven days and the subsequent hearing and the obligation on the detaining authority to produce a fuller explanation on the second occasion than on the first of why the person is detained.

Lord Falconer of Thoroton: The merit of having a checklist is that the court addresses the correct question. Without it one fails to achieve a situation where the court focuses on what, under the statute, permits an exception to the statutory presumption of bail. If one has simply a blank piece of paper, one finds, as one did before the Bail Act 1976, that on innumerable occasions people are denied liberty on grounds that would not constitute a legal reason for so restraining them. I believe that in principle a checklist is a good thing.

I accept entirely that the reasons for detention after the first statutory hearing in relation to bail may well be different from the second. But on both occasions the legal framework is the same; namely, that there must be substantial grounds for the magistrates to believe that the detainee will abscond, break his bail conditions, be a danger to public safety, or whatever be the precise words. The fact that the evidence may change does not mean that the basic framework within which consideration is given to the matter has changed: the law and the tests to be satisfied remain the same.

In those circumstances, it seems to me wholly appropriate that the magistrates should be presented with a checklist that focuses their minds on the only grounds that would justify the continued detention of the defendant.

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9.30 p.m.

Lord Dholakia: I should like to press the Minister on the issue raised by my noble friend Lady Williams. I have sat as a magistrate and heard not only immigration matters, but applications for bail. Many things are steamrollered through the courts.

Is it not possible within the checklist to include a requirement for magistrates to be given information about torture?

Paragraph 12.4 of the White Paper states:


    "The Government also recognises the need to exercise particular care in the consideration of mental and physical health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual's asylum claim is being considered".

If that is the intention, why not bring those factors to the attention of the magistrate? It can be done as part of a checklist or by placing a duty on those presenting the case to ensure that these facts are available to them.

Lord Falconer of Thoroton: The Government stand behind every word that the noble Lord has quoted from the White Paper. Training is the most important issue in relation to this matter, and magistrates should be made aware of the special significance of evidence related to torture in considering the question of bail.

The checklist will set out the reasons for the decisions they have reached. It would not be appropriate at that stage to include those issues which, it is to be hoped, the training has brought to the forefront of their minds. There is no difference in principle in what we are trying to achieve in relation to these bail hearings, and therefore I invite the noble Lord to withdraw the amendment.

The Lord Bishop of Ripon: Why does the Minister say that it is not appropriate for information about torture to be included in the checklist? I should have thought that it was entirely appropriate.

Lord Falconer of Thoroton: The checklist at the moment sets out the statutory exceptions to the presumption of bail. The magistrates' attention is being focused on the reasons that would justify not granting bail. It is suggested that the checklist, instead of setting out the reasons for not granting bail, should set out a route map to the magistrates and then give the reasons for not granting bail. That is to misunderstand the nature of the checklist and the nature of court proceedings where, although the magistrates must be trained on the significance of torture, ultimately it is for the representative of the detainee to put those matters that are considered appropriate for the court in relation to bail. If the court thinks there is a problem about the quality of the representation, then no doubt that would be appropriate in certain cases, but normally it is for the representative of the detainee to put such material before the court if appropriate.

In many cases, while torture may be one issue, there will be a huge number of other issues such as the extent to which the detainee is settled in this country or has a family in this country and the likelihood of him or her breaking a condition of bail. Is it suggested that the

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checklist should contain every possible argument that the detainee could put forward in order to get bail? That would be unhelpful rather than helpful.

Lord Clinton-Davis: And which the detainee may not wish to have put before the court.

Viscount Bridgeman: The Minister will be left in no doubt about the deep concern from all quarters of the Committee about this aspect of the Bill. However, I join the noble Baroness, Lady Williams of Crosby, in thanking him for his very informative and comprehensive explanation. We shall carefully read what he has said and I have no doubt that we will come back to this matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 95 and 96 not moved.]

Lord Falconer of Thoroton moved Amendment No. 96A:


Page 30, line 40, leave out from beginning to end of line 41 and insert ("If a person has been refused bail--").

The noble and learned Lord said: As previously drafted, the Bill would allow a detained person to advance any argument as to fact or law only on the first occasion that a court considered whether he should be released on bail.

Amendments Nos. 96A and 96B will ensure consistency between the bail provisions of this Bill and those contained in the Bail Act 1976. They will allow the same arguments as to fact or law to be advanced at the second subsequent bail hearing. It is only at the third hearing before the court concerned that the detained person will be unable to use the same arguments which he had used twice previously. I invite the Committee to accept the amendments. I beg to move.

On Question, amendment agreed to.


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