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Lord Bassam of Brighton: My Lords, as ever, I am grateful to the noble Earl for his comments, observations, guidance and good advice. The noble Earl refers to nailing one's colours to the mast. We believe that the system that we have in place is robust. I outlined in my earlier comments ways in which we shall keep it under careful review and monitor and strengthen it. There is a need for a system of complaints auditing that is proportionate to the size of the problem, and I believe that I have argued that case well.

Lord Dholakia: My Lords, I am grateful to the Minister for having gone to such trouble to give his explanation. I remain to be convinced by the arguments that he advanced. I can also produce figures, but I shall resist that temptation at 10 minutes to midnight. Needless to say, I shall study his reply very carefully and return to this matter at Third Reading. Having worked with the Commission for Racial Equality and been a member of the Police Complaints Authority, I know that if there is no independent mechanism, at some stage one must be invented. This is the opportunity to do so. I shall return to this matter at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 124 [Arrest without warrant]:

Lord Williams of Mostyn moved Amendment No. 218A:


Page 80, line 3, at end insert--
(“( ) In relation to the exercise of the powers conferred by subsections (3)(b), (4)(b) and (5), it is immaterial that no offence has been committed.
( ) In Scotland the powers conferred by subsections (3), (4) and (5) may also be exercised by a constable." ").

The noble and learned Lord said: My Lords, in this grouping, one finds Amendments Nos. 218A, 218B to 218D, 229 and 290A. I deal first with the Government's amendments. Amendment No. 218A is in two parts. The first clarifies the position when an arrest is made on reasonable suspicion of an offence of facilitation, harbouring or obstruction. This makes it plain that, if the immigration officer can demonstrate

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that he has reasonable grounds for suspecting that an offence has been committed, the arrest will be lawful even if it transpires later that no offence actually took place. Not to clarify the position would make the power of arrest unworkable.

The second part of this amendment rectifies a defect in Clause 124 as it applies to Scotland. Powers of arrest for offences of facilitation, harbouring and obstruction are provided in subsections (3), (4) and (5) of Clause 124. Police constables are not specified. In England, Wales and Northern Ireland the police already have parallel powers of arrest under PACE, but PACE does not extend to Scotland. This amendment addresses the anomaly in the clause and ensures that constables in Scotland have the same powers of arrest as immigration officers and police officers in the rest of the United Kingdom.

Amendment No. 290A is technical. Schedule 2 to the 1971 Act provides immigration officers with powers to arrest those persons liable to be detained under Schedule 2. This includes illegal entrants and those who are refused leave to enter. This power of arrest is extended to Schedule 3 to the 1971 Act to allow those liable to detention under that schedule also to be arrested. Clauses 128, 130, 131, 132 and 135 insert new paragraphs into Schedule 2 to provide immigration officers with powers of search, seizure and retention when conducting arrests under that schedule. This amendment clarifies that those powers can be used when the arrest is effected under Schedule 3.

I turn next to the opposition amendments (if I may so describe them). Amendments Nos. 218B to 218D would remove the power of a justice of the peace in Scotland to issue warrants authorising immigration or police officers to enter and search specifically identified premises to carry out an arrest or to search for evidence. The granting of warrants is a core function of justices of the peace in Scotland and something that is done routinely. They already grant warrants under the Immigration Act 1971 and the Asylum and Immigration Act 1996 to allow police constables to enter, search and arrest for immigration offences. Clauses 125 and 127, to which these amendments refer, will allow immigration officers as well as constables to execute warrants. I would not have thought that that would significantly impact on the consideration of applications for warrants by justices of the peace in Scotland.

Justices in Scotland grant warrants to agencies other than the police; for example, the utility services and HM Customs and Excise. They are given guidance and training that covers all of their duties, and I am not aware of any operational difficulties associated with their grant of warrants. Indeed, the local nature of justices of the peace means that they are more accessible outside routine hours and, therefore, give valuable assistance when warrants are urgently required. I cannot see any reason to differ from the existing and accepted practices in relation to warrants for entry, search and arrest when dealing with the immigration offences detailed in this Bill.

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The effect of Amendment No. 229 would be to restrict the use of reasonable force by an immigration officer to the powers contained in Part VII. As drafted, Clause 142 allows the use of reasonable force, where necessary, in the exercise of any power in this Bill or the 1971 Act.

What we seek to do--I think that we have succeeded--is to give a proper, legal framework for immigration officers to work in. Reasonable force in a particular circumstance is, of course, a matter for the courts, depending on the particular circumstances and the power being exercised. It may be helpful if I explain that enhanced training in the legal concept of reasonable force and its practical consequences will be given to immigration officers.

This is not a new area. Police officers derive their powers from common law, from the Criminal Law Act 1967 and from Section 117 of PACE. Immigration officers also derive their powers from the common law and from the Criminal Law Act. Restricting the explicit use of force only to Part VII of the Bill I think would cause mischief which is unintended. I cannot support the amendments. I beg to move.

Viscount Astor: My Lords, I am grateful to the noble and learned Lord for dealing with Amendments Nos. 218B to 218D. The amendments were tabled after concerns were expressed by the Law Society of Scotland. Thinking of his previous incarnation, the Minister will know that when one receives a concern from a law society one takes it with all due seriousness.

The concerns were twofold: that the justice of the peace may not be legally qualified and may be unfamiliar with the criteria needed to grant a warrant. The remarks of the noble and learned Lord about training are helpful. It is a concern of the Law Society that this matter should remain within the sole ambit of the sheriff. I shall study with care the Minister's remarks. I am sure that the noble and learned Lord will also consider the Law Society's point about whether a justice of the peace is legally qualified.

I am grateful for the Minister's explanation. In the light of that I shall not move the amendments.

On Question, amendment agreed to.

Clause 125 [Search and arrest by warrant]:

[Amendments Nos. 218B and 218C not moved.]

Clause 127 [Entry and search of premises]:

[Amendment No. 218D not moved.]

Clause 136 [Detention of persons liable to examination or removal]:

Lord Avebury moved Amendment No. 219:


Page 93, line 35, at end insert--
(“( ) In paragraph 18 of Schedule 2 to the 1971 Act, at the beginning there is inserted--
“(A1) Persons may be detained under paragraph 16(1) above for a period not exceeding 48 hours in such places as the Secretary of State may direct, and after that in a detention centre as defined in section 143 of the Immigration and Asylum Act 1999.").

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The noble Lord said: My Lords, this amendment corresponds closely with one which was spoken to in Committee. The noble and learned Lord, Lord Falconer of Thoroton, replied to it at col. 1623 of the Official Report of 28th July.

The purpose of the amendment is to provide that where a person having arrived in the United Kingdom has to be detained, he can be held initially only for 48 hours in a place other than a detention centre. At the end of that period he must be transferred to a detention centre. The Government's policy, as set out in the White Paper, is to detain people at the beginning of the application process for asylum in a limited number of cases where doubt arises as to the applicant's identity. One hopes that the vast majority of those people who need to be detained are held at the end of the process when they have been through the mechanism of appeal and are on the way to being sent back to their country of origin having failed in their applications. Under those circumstances we accept that it is frequently necessary to detain; otherwise the person has no incentive to report when he is required to present himself for removal.

At the beginning of the process it is a different matter. We hope that the proportion of those having to be detained on arrival will be very much lower although when one looks at the figures, one sees that that is still not the case. We are still seeing a preponderance of those being detained held on arrival and therefore the criteria set out in the White Paper are not being observed.

As we are having to detain quite a large number of people on arrival, we want to make sure that they are held in proper facilities. The noble and learned Lord, Lord Falconer, accepted that that was a desirable objective. He made the point that it was frequently impossible to find a detention centre within the 24-hour limit. Therefore, we have tried to make it easier for the Government by extending the period to 48 hours.

This is a very simple amendment. Therefore, I hope that the Government will be disposed to accept it. It would mean that the number of people sent immediately to prison on arrival would be enormously reduced. They are sent to prison all too frequently at the moment. I very much regret the fact that people have to be accommodated in Rochester and Haslar, which are prison establishments, and not in detention centres which are designed for the purpose.

As the Minister knows, the Chief Inspector of Prisons recommended as long ago as 1997 that people should be held only in detention centres. The United Nations Working Group on Arbitrary Detention came here to look at the way we deal with asylum. It echoed the recommendation of the chief inspector. The Government have accepted that we should work towards that objective. The only reason why they cannot accept that it should be done immediately is simply because of the problem of providing the bricks and mortar. Aldington will not be in operation until the year 2001. There is a new special purpose detention centre being developed in the North. There are

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indications that the Government may wish to convert Haslar from a prison establishment into a detention centre. It will be useful if the Minister can say whether that is a fixed policy or whether it is still a possibility in the Government's mind.

I very much hope that this opportunity will be taken by the Government to reaffirm that it is their objective to move towards a situation where we do not need to detain people in prison except in a very limited set of circumstances such as when they have committed a criminal offence and when, as the noble and learned Lord, Lord Falconer, mentioned in an earlier debate, they exhibit violence on arrival. That is practically the whole list of circumstances under which it would be necessary to put someone in prison. I know that the Government are of the same mind in that we object very strenuously to the idea that people who have committed no criminal offence should find themselves in the prison system. This amendment is designed to work towards that position. I hope that the Government accept it. I beg to move.

Midnight

Lord Hylton: My Lords, I support the amendment moved by the noble Lord, Lord Avebury. I speak also to Amendment No. 230, which comes before Clause 143 and provides for a maximum length of administrative detention. Only this morning I received a letter from a Roman Catholic religious Sister. She writes,


    “After working with detainees over the last five years, I believe the considerable majority to be genuine asylum seekers".

Another wrote to me from Surrey, stating:


    “I have been visiting Tinsley House near Gatwick for the last five years. I have watched detainees' health and morale deteriorate as detention persists from month to month. They suffer depression, anxiety and insomnia. Everything is uncertain. They are a very vulnerable group.".

A letter to me from a man in Brighton states:


    “I have been visiting detainees for three years and have seen the terrible effects that detention has on many detainees. They are estranged from home, family, culture and country.".

I have quoted from independent eye witnesses who have been going into detention centres over a long period of time, particularly under two different governments. Their observations are confirmed by a study on the mental health of detainees conducted by Dr. Pourgidez, of which I am sure the Home Office has a copy.

For a long time, many of us have been asking for a time limit on the detention of people whose asylum or immigration cases have not yet been determined. We are regularly told that this is not possible and the departmental refrain goes something as follows: individual cases are regularly reviewed at progressively higher levels. I think that the word processors must be getting weary of churning that out, but the fact remains that individuals languish in custody, sometimes in prison, always in limbo, and sometimes for longer than six months.

In seeking to set a maximum length of six months, I have deliberately chosen this period because it coincides exactly with the target set by the

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Government for initial decisions in asylum cases and for consequential appeals. If it is going to be possible to deal with all new cases in that period, surely the much smaller number of detainees held at any one time can be processed and either released or deported within six months. I believe that such a time limit would concentrate official minds enormously.

I emphasise that we are talking about people who are charged with no offence. They are merely suspected of wishing to abscond or of some procedural irregularity. They should not be subject to indefinite detention.


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