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Lord Falconer of Thoroton moved Amendment No. 50:


Page 29, line 31, leave out from (“and") to end of line 38 and insert (“there is no relevant decision which the officer is in a position to take; or").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 51:


Page 29, line 39, at end insert--
(“(3A) The detained person need not be granted bail if the court is satisfied that he is a person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 (national security cases) applies.").

On Question, amendment agreed to.

Lord Dholakia moved Amendment No. 52:


Page 29, line 39, at end insert--
(“( ) If the court is satisfied that any of the provisions in subsections (2) or (3) apply, the detained person shall be notified in writing including the reasons for applying exceptions.").

The noble Lord said: My Lords, this amendment is grouped with Amendment No. 56. In both cases we are asking for written reasons to be given. The amendment is intended to ensure that detainees refused bail are notified in writing of the reasons for the statutory presumption in favour of bail not applying and the reasons for applying an exception. We are not asking for anything new in this case.

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These are some of the good practices already adopted in criminal proceedings where a tick box applies. We are asking for similar provision to be made in relation to Clause 40.

The amendment provides for the issuing of written reasons for detention specific to the individual, with particular reference to the factors set out in the White Paper as militating against detention. This is probably the most important clause in as much as the reasons ought to be given in writing rather than simply in tick box form.

Written reasons for detention first emerge in response to a request to an immigration officer for temporary admission. The reasons given may be extremely broad and general. An individualised bail summary is produced, often at the door of the court, or at the bail hearing. Very often, it will be the fact that that summary omits, or makes mistakes in describing, certain aspects of the detainee's history, or that the reasons given for detention do not accord with those set out in the Immigration Service guidance on detention that will be of force in persuading the adjudicator that it is appropriate to release. Further information is provided by the reports from the Asylum Rights Campaign and the report by Bail for Immigration Detainees.

Paragraph 12.7 of the White Paper states:


    “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 similar to that used for bail in a magistrates' court".

We should appreciate clarification that full reasons particular to the individual will be given and in particular that they will be made available for the bail hearing, reflecting current practice in immigration cases. The need for that, in accordance with international standards, has been highlighted by many of those giving evidence to the committee--for example, the UNHCR in its comments. At page 3, the White Paper states:


    “Individualised written reasons, as opposed to repetition of generic formulae, for detention should be given to asylum seekers at the time of arrest".

The Medical Foundation for the Care of Victims of Torture states that that is of particular importance to its patients, given the Government's statement, also at page 3, that,


    “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 release whilst an individual's asylum claim is being considered".

If that commitment is to be meaningful, we need to be sure that these issues will be considered and addressed by the Immigration Service and the magistrate or adjudicator. Clearly, that cannot be done if the information is not before them. I beg to move.

The Earl of Sandwich: My Lords, this is an expanded version of the previous amendment moved in Committee as Amendment No. 94 by the noble Viscount, Lord Bridgeman, which I supported. I have

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just read the reply given by the noble and learned Lord, Lord Falconer. It was a very full answer, but not a satisfactory one.

The noble and learned Lord argued that the amendment was unnecessary because the Government had already agreed with it. He said that they had already made provision for written reasons. But he was referring only to the checklist and faithfully following paragraph 12.7 of the White Paper. My concern is for the detainee. Why cannot a detainee be given full reasons, as the noble Lord, Lord Dholakia, said, and as stated previously, particular to the individual, taking account of his age, history and so forth? Surely he has a right to a document stating clearly why he is being held. It is something that he can show to other people and is part of his right to claim asylum. If full written reasons are available for a routine bail hearing within seven days, why not combine it in one and have it all at the same time?

I am sorry, too, that the additional point on torture made by the noble Baroness, Lady Williams, had to be reiterated. That was rather brushed aside by the noble and learned Lord last time.

Baroness Williams of Crosby: My Lords, before the Minister replies, perhaps I may remind him that the Special Standing Committee in another place was given something close to an assurance by the then Minister, Mr Michael O'Brien. He said:


    “Where torture has taken place and it is a relevant consideration for bail conditions ... it is right for the magistrate to be aware of this". [Official Report, Commons, Special Standing Committee, 27.4.99; col.1057.]

One of our concerns is that we do not quite see how the magistrate could be aware of it without the written declaration of reasons for detention which would enable him to bring about, or ask, for a specific reference to a history of torture. In particular, we had read what Mr O'Brien said to imply that the Government would give favourable consideration to an attempt to indicate that there must be written reasons in that particular group of cases where the presumption in favour of bail being waived involved special reasons.

Viscount Bridgeman: My Lords, if there are procedural, administrative reasons why written reasons could not be given in individual cases, would the Government be prepared to consider an expanded check list, more informative to the applicant and more user friendly? It would be without having the obligation to give specific personalised written information in each case.

Midnight

Earl Russell: My Lords, there is a slight problem about that suggestion. If the reasons are not specific to the person, how can any attempt be made to rebut them?

Lord Hylton: My Lords, we have been arguing about reasons in writing for a long time. Certainly they came up under the last Bill on the subject and in view

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of that I am glad that the Conservative Front Bench is now converted to the principle of having reasons in writing.

I would go a little further than what has been expounded so far. It seems to me essential that the reasons should be stated in language understood by the applicant. If that is not possible, at least the reasons in writing in English should be accurately interpreted to the applicant by someone fully conversant with his original language. I support the first amendment and, more importantly, Amendment No. 56.

Lord Falconer of Thoroton: My Lords, Amendment No. 52 would provide that, where the court is satisfied that one of the exceptions to bail applies, the person must be notified in writing of reasons for applying the exceptions concerned. It is not clear whether it is intended that this notification should be provided by the court or the Secretary of State. As the noble Earl, Lord Sandwich, said, it has been made clear on more than one occasion that the Immigration Service intended to introduce written reasons for detention. Since I made that speech, immigration officers have now been issued with instructions requiring that written reasons for detention be issued in every case.

Clearly, there will need to be a revision of those instructions when Part III of the Bill comes into force, to take account of the provisions of Clause 40 which set out the circumstances in which someone may be released on bail.

I am happy to reassure the House that the detainee will have notification in writing of the reasons for his detention and the reason it is believed that exceptions apply in his case. This notification will be given as soon as possible after initial detention and in any event before the time arrives for any routine bail hearing.

If the court decides that bail is not applicable because one or more of the exceptions apply, it will endorse those reasons. Written reasons will be given as soon as possible; at present they will be in the form of a detailed check-list. But that detailed check-list will be tailored to individual circumstances and to relevant exceptions to the right to bail. By “be tailored", I mean, for example, that if it is thought that the applicant would abscond if released--which is what the check-list heading would be--the check-list would indicate why it is thought that he would abscond; that is, it would expand on the reason why it was thought that he would abscond. It could be because he had previously absconded. That picks up the suggestion of the noble Viscount, Lord Bridgeman, and appears to be a sensible way to ensure that people turn their minds to the problem. It does not go so far as to require detailed reasons, but I believe that it is the whole purpose of providing written reasons; namely, a person should know sufficient to understand why he has been detained so that he may appropriately challenge his detention.

In response to the noble Baroness, Lady Williams, I am told that the checklist contains no reference to torture. With no assurance one way or the other, perhaps I may investigate that matter. I can see an

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argument along the lines that the checklist should refer to torture and, if relevant, explain how it has been taken into account. I give absolutely no assurance as to that, but I shall look at the matter and refer to it again at Third Reading.

Amendment No. 56 would require the Secretary of State to give information to the detainee and his representative about the detainee's believed age, torture history, state of health and reasons for detention. Where the person's age is in dispute, there will be close contact between the immigration officer and the detainee about the evidence available to suggest that the person is other than the age claimed. As for reasons for detention, they shall be provided to the detainee in writing as soon as possible following the decision to detain. Therefore, this part of the amendment is unnecessary. The remainder of the information covered by the amendment is provided by the detainee himself. Therefore, those parts of the amendment also appear to be unnecessary, again subject to the point that I have made about torture, with no assurances. I am afraid that I am unable to support either amendment.


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