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Viscount Brentford: My Lords, I have very little to add. Having put my name to the amendment, I agree with what has been said. My concern is with the last three paragraphs and whether this is the best method for dealing with the vulnerable people involved. I refer in particular to paragraphs (b) and (c). If a person who is suffering from a mental disorder is a danger to himself or to other people, he should be under professional care and not detained as described here. He should be in a hospital or where he will obtain the best help available for him. Surely this is not the best way of dealing with somebody suffering from a mental disorder.
Similarly with paragraph (c). I echo what the right reverend Prelate said about young people. Surely the Children Act is working effectively and we can rely on that. The appropriate way to deal with the arrival of an unaccompanied child is to place the Immigration Service under a duty to contact the local authority and then to let Section 47 of the Children Act take effect. That would be far better than detaining a person and refusing bail for this purpose.
Earl Russell: My Lords, the first two categories covered by the amendment, those of people suffering from mental health problems and of children, if they should be detained at all--the burden of proof on that is a very heavy one--should be detained under different circumstances and different powers from adults.
Lord Avebury: My Lords, whether someone is suffering from a mental disorder is a matter of clinical judgment. I hope the Minister agrees with that proposition. Therefore, if subsection (3)(b) is to be implemented, it presupposes that the patient has been examined and has been found by qualified medical practitioners to be suffering from a mental disorder. If that is the case, those qualified medical practitioners would be able to make an order for him to be transferred to a psychiatric institution. As the right reverend Prelate said, that is the proper place for him to be. I cannot understand how a provision of this kind
The noble and learned Lord shakes his head. I should like to know of any examples counter to that statement. Where else do we place people who are found by two qualified medical practitioners to be mentally ill? That is what the mental health Acts are there for. I believe that this provision is completely contrary to Government's wishes as set out in those Acts.
Lord Hylton: My Lords, I am pleased that the Government have written into the Bill a general presumption in favour of bail, provided that bail is set at reasonable levels. It is widely acknowledged, and has been spoken to by previous speakers, that the exceptions in Clause 40 are far too wide. I am not yet satisfied that the Government's two amendments to the clause bring them back to within reasonable limits. For that reason, I am minded to support the amendment, and I hope that the Government will have further thoughts on the matter.
Lord Falconer of Thoroton: My Lords, no one in this Chamber would disagree with the proposition that children should not be put in prison, nor should those people with mental disorders. The noble Lord, Lord Avebury, noticed that I shook my head when he remarked that surely nobody in this country with a mental disorder should be put anywhere other than in an appropriate institution.
I have terrible news for the noble Lord. It happens every day of the week in the courts, because they say repeatedly to the institutions, Please provide an appropriate place for someone who should be detained". There are insufficient numbers of such places. In those circumstances, there is no alternative but to detain such people for their own good. The right reverend Prelate has said rightly that children should not be detained in prison, but should we then throw them out on to the street when there are no care places for them? As I understand it, that would be the effect of the amendments.
Imagine the scene in the magistrates' court where they are determining what to do in their decision to grant bail? They will be ringing the social services department of the local authority. They will not be able to reach anyone by telephone. That is not a criticism of the local authorities; they are overstretched. What then is the right thing to do? Is it,
Lord Avebury: My Lords, I believe that we should distinguish between mental disorders that can be treated and those which are incapable of medical treatment. The mental health Acts do make such distinctions. Persons with a disorder which cannot be treated may indeed be kept in prison, but those who are treatable are transferred from prison to mental institutions. Although there may be difficulties in trying to have them transferred--doctors from prisons have written to me frequently on the subject--they are finally transferred to psychiatric institutions. That is the proper place for them. However, the clause as drafted does not make a distinction between mental disorders which can be treated and those which cannot be treated.
Lord Falconer of Thoroton: My Lords, what we are talking about here is this Bill and whether the person is suffering from a mental disorder and whether his continued detention is necessary in his own interests or for the protection of any other person. This Bill draws no distinction between a mental disorder which can be treated and one which cannot be treated. It simply raises the following question. Is the state of mind of the applicant such that he would be a danger to himself or to others if he were released? Of course it would be better if he could be released into appropriate accommodation for someone suffering from a mental disorder. But what if no such place were available? What then would the court be supposed to do?
Baroness Williams of Crosby: My Lords, does the noble and learned Lord agree that the statement he has just made is a disturbing comment on the policy of this and previous governments? Can he give the House some indication that the Government intend to correct a situation in which those who are mentally ill or those who are young cannot be dealt with outside prison? He will recognise, as we do, that the prisons themselves are extremely overcrowded and cannot deal effectively with such people.
Lord Falconer of Thoroton: My Lords, I wish I could, but I cannot. It would be irresponsible of any government not to make provision in relation to a Bill such as this for the world as we presently find it. Unfortunate as it is, we must make this provision. Noble Lords behind me are mumbling that this is the Report stage. It is in a sense my fault for putting the position in such a stark way.
Perhaps I may go on and deal with the other amendments. Amendments Nos. 50 and 53 have been tabled for clarification purposes and reflect the outcome of the discussion between Home Office officials and Justice to which I have already referred. Justice was concerned that, as originally drafted, subsection (3)(d) of Clause 40 could be open to misinterpretation by immigration officers. The redrafted clause makes it clear that immigration officers can rely on this exception to the right to bail only if they can neither decide on whether to grant or refuse leave, nor on the curtailment of a leave already granted, nor on temporary admission. Thus, for example, subsection (3)(d) might apply in the case of a person who claims asylum on arrival and fails to give his true identity or where there is no suitable release address. Such a person could not be given or refused leave and would not, on the information available, be suitable for the grant of temporary admission.
The Earl of Sandwich: My Lords, the noble and learned Lord began to enlarge the debate, which I am sure we would have all enjoyed. But I had the feeling also that he would like to move on to other amendments. I do not think that the voluntary organisations will be satisfied with his reply. He is perhaps himself not satisfied. So we may bring back the matter at Third Reading. I beg leave to withdraw the amendment.