Select Committee on Delegated Powers and Deregulation Twenty-Second Report


ANNEX

IMMIGRATION AND ASYLUM BILL
Memorandum by the Home Office

PART VIII: DETENTION CENTRES AND DETAINED PERSONS

CLAUSE 143(1): POWER TO MAKE RULES FOR THE REGULATION AND MANAGEMENT OF DETENTION CENTRES
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 138(3), clause 139(6), clause 142(2) and clause 154 of the Bill and paragraphs 1, 2, 3, 5 and 6 of Schedule 11 and paragraph 3 of Schedule 12 to the Bill

355.  Clause 143 requires the Secretary of State to make rules for the regulation and management of immigration detention centres. The clause provides that detention centre rules may, inter alia, make provision with respect to the safety, care, activities, discipline and control of detained persons. It also allows detention centre rules to extend to short-term holding facilities.

356.  The detention centre rules will be similar to, and serve the same purposes as, prison rules made under section 47 of the Prison Act 1952. The rules will reflect the special status of immigration detainees, their diverse backgrounds and cultural needs and the anxieties which may be associated with detention.

357.  It is anticipated that the detention centre rules will set out the rights and responsibilities of detainees and will govern all aspects of the regime to be operated at detention centres. The rules will regulate those who work at detention centres and those with access to such centres, including Visiting Committees.

358.  It is submitted that it is appropriate for detention centre rules to be made by way of delegated legislation due to the inevitable complexity of those rules and the need which will apply from time to time to amend their provisions. The same complexities and needs arise in relation to prison rules under the Prison Act 1952.

359.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure will provide an appropriate level of Parliamentary control, as is the case in relation to the prison rules.

SCHEDULE 10, PARAGRAPH 7: POWER TO SUSPEND CERTIFICATES OF AUTHORISATION OF DETAINEE CUSTODY OFFICERS
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 140, clause 144, clause 145, clause 146 and clause 154 of the Bill and Schedule 10 to the Bill

360.  Clause 144 of the Bill provides that the Secretary of State may, on application, certify that the applicant is authorised to perform escort functions or is authorised to perform both escort functions and custodial functions in relation to immigration detainees. Paragraph 7 of Schedule 10 provides for suspension and revocation of certificates of authorisation in certain circumstances. In particular, it provides escort monitors and contract monitors with powers to suspend certificates of authorisation in circumstances to be prescribed by regulations made by the Secretary of State. Similar provision is made in respect of suspension of certificates of authorisation of prisoner custody officers under paragraph 3 of Schedule 10 to the Criminal Justice Act 1991. Under clause 155(1), "prescribed" means prescribed in regulations made by the Secretary of State.

361.  It is submitted that, as is the case in relation to prisoner custody officers under the Criminal Justice Act 1991, it is appropriate for powers to suspend certificates to be detailed by way of delegated legislation.

362.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that the negative procedure provides an appropriate level of Parliamentary control, given the detailed nature of the power.

SCHEDULE 10, PARAGRAPH 2(1): RULES GOVERNING DETAINEE CUSTODY OFFICERS' POWERS TO SEARCH DETAINED PERSONS IN CUSTODY
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 144, 145 and 154(4) of the Bill and section 86(1)(a) of the Criminal Justice Act 1991

363.  Clause 145 of the Bill provides that custodial functions may be discharged at detention centres by, inter alia, detainee custody officers authorised, in accordance with clause 144, to perform such functions. The powers and duties of detainee custody officers when exercising custodial functions are set out in paragraph 2 of Schedule 10 and include, at subparagraph (1)(a), a power to search (in accordance with rules made by the Secretary of State) any detained person in relation to whom the officer concerned is exercising custodial functions.

364.  It is anticipated that the rules governing searches of detained persons in custody will be included within same instrument as the detention centre rules made under clause 143 and will set out the circumstances in which detained persons may be searched while in custody. The rules will be designed to safeguard the rights of detained persons, most notably under Article 8 of the European Convention on Human Rights, so as to ensure that searches are only undertaken to the extent that they are necessary and proportionate.

365.  It is submitted that, as is the case in relation to the equivalent powers of prisoners custody officers under section 86 of the Criminal Justice Act 1991, it is appropriate for search powers of detainee custody officers to be regulated by way of delegated legislation due to the likely complexity of the rules. It is further submitted that, as under section 86 of the Criminal Justice Act 1991, negative procedure will provide adequate Parliamentary scrutiny of this power.

SCHEDULE 11, PARAGRAPH 3: POWER TO REQUIRE DETAINED PERSONS TO SUBMIT TO MEDICAL EXAMINATIONS AT DETENTION CENTRES
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 143 and clause 154 of the Bill

366.  Paragraph 3 of Schedule 11 provides detainee custody officers with a power to require detained persons to submit to a medical examination at detention centres. Such medical examinations are to be conducted in accordance with detention centre rules made under clause 143. The power to require medical examinations under paragraph 3 will be limited to circumstances where an authorisation is in force and there are reasonable grounds for believing that a detained person is suffering from a disease which is specified in an order which is in force under subparagraph (7).

367.  It is submitted that the specification of diseases which might endanger the health of others in detention centres should be done by way of delegated legislation due to the fact that they may vary from time to time. It is only diseases which are considered highly contagious which will be capable of being specified in the order.

368.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. It is submitted that negative procedure will provide an appropriate level of Parliamentary control of this power.

SCHEDULE 12, PARAGRAPH 2(1): RULES GOVERNING DETAINEE CUSTODY OFFICERS' POWERS TO SEARCH DETAINED PERSONS UNDER ESCORT
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clauses 146 and 154(4) of the Bill, Schedule 12 to the Bill and section 82(1)(a) of the Criminal Justice Act 1991

369.  Clause 146 enables the Secretary of State to make arrangements for the escort of detained persons to and from the places specified in that clause. Sub-clause (2) allows escort arrangements to be performed by detainee custody officers. The powers and duties of detainee custody officers when performing escort arrangements are set out in paragraph 2 of Schedule 12 and include, at subparagraph (1)(a), a power to search (in accordance with rules made by the Secretary of State) any detained person who is under escort by the relevant officer.

370.  The rules will be designed to safeguard the rights of detained persons, most notably under Article 8 of the European Convention on Human Rights, so as to ensure that searches are only undertaken to the extent that they are necessary and proportionate.

371.  It is submitted that, as is the case in relation to equivalent powers of prisoner custody officers under section 82 of the Criminal Justice Act 1991, it is appropriate for search powers of detainee custody officers to be regulated under escort by way of delegated legislation due to the likely complexity of the rules. It is further submitted that, as under section 82 of the Criminal Justice Act 1991, negative procedure will provide adequate Parliamentary scrutiny of this power.

SCHEDULE 12, PARAGRAPH 2: PERFORMANCE BY DETAINEE CUSTODY OFFICERS OF THEIR DUTY TO ATTEND TO THE WELL-BEING OF DETAINED PERSONS UNDER ESCORT
Power conferred on: The Secretary of State
Power exercisable by:Statutory instrument
Parliamentary procedure:Negative resolution (either House of Parliament)
Other relevant provisions:Clause 146 and clause 154 of the Bill and paragraphs 1 and 3 of Schedule 12 to the Bill

372.  Clause 146 allows the Secretary of State to make arrangements for the escort of immigration detainees to and from various places. It provides that functions under the arrangements may be performed by detainee custody officers. Paragraph 2 of Schedule 12 sets out the powers and duties of detainee custody officers who are acting in accordance with escort arrangements. One of those duties is to attend to the well-being of detainees under escort. Subparagraph 2(4) allows the Secretary of State to make rules governing the performance by detainee custody officers of that duty. Equivalent provision is made in relation to prisoner custody officers carrying out prisoner escorts under section 82(3) of the Criminal Justice Act 1991.

373.  It is anticipated that the rules governing the duty to attend to well-being of detainees under escort will be contained within the detention centre rules made under clause 143. It is submitted that it is appropriate for the safeguards concerned to be provided by way of delegated legislation in order that the changing needs of detainees can be responded to flexibly and quickly.

374.  Under clause 154 the power is exercisable by statutory instrument subject to annulment by either House. This follows the precedent of section 82(3) of the Criminal Justice Act 1991. It is submitted that the negative procedure will provide an appropriate level of Parliamentary control of this (limited) power.


 
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