My Lords, my noble friend Lord Paddick and I have a number of amendments in this group, and we have added our names to other amendments in the names of the noble Lords, Lord Rosser and Lord Kennedy.
With this amendment we come to another big issue, starting with what may appear to be a triviality, although I do not regard it as such. The clause, of course, is about bail. The law as it currently stands is that if a person cannot lawfully be detained under immigration powers—for instance, because there is no prospect of removing her or him within a reasonable period, or at all, or because it is contrary to policy to detain because the person is a victim of torture or trafficking or is seriously mentally ill—that person must be released from immigration detention and cannot be subject to bail because the powers to grant bail and to impose bail conditions can apply only if there is a power lawfully to detain. Bail is not liberty, either conceptually or practically, because of conditions which may be applied.
The Master of the Rolls, Lord Dyson—I appreciate he may not be the flavour of the month in the Government’s eyes, following evidence to the Justice Committee—recently referred to the long-established common law position that,
“The power to grant bail presupposes the existence of (and the ability to exercise) the power to detain lawfully. … It would be extraordinary if Parliament had intended to confer the power to grant bail where a person has been unlawfully detained or could not lawfully be detained”.
But we have Clause 32 and Schedule 7, which say that a person may be granted bail,
“even if the person can no longer be detained”,
which left my head spinning—but not spinning so much that I do not think that the language is important.
In this debate, we will all refer to “bail” because that is the term used in the Bill, but Amendments 215A and 216A would replace it with the term “temporary admission”. Language should be accurate and should not imply what it is not. We are not wedded to the term “temporary admission”. It used in at least three immigration statutes which I have come across, and
indeed there is a Government amendment using the term. But if the Government wish to propose an alternative which does not suggest that detention is the norm, and that is accurate and does not carry connotations—in particular, that does not suggest that persons seeking asylum are criminals—I would of course be happy to entertain it.
I am spending a little time on this issue because it is not just me and the other noble Lords concerned who are nodding. Article 31 of the 1951 refugee convention expressly protects those who claim asylum from being treated as criminals, and I am advised that the UNHCR and other international guidance recognises that detention must always be the exception—a point I would like to emphasise.
In the Public Bill Committee in the Commons, the Minister said that the language was chosen deliberately because it is commonly understood by practitioners, but the point, surely, is how it is understood by others. Anything that risks designating an asylum seeker or someone who is seeking to register his status as an asylum seeker, who is not illegal, as a criminal—instead of, as he often is, as a victim—should be avoided.
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Moving on to the other amendments, the language is not new but the restrictive provisions of the Bill are. We have added our names to Amendment 217, tabled by the noble Lord, Lord Rosser, because it gives a role to the judiciary, not the Executive. That is probably the most important issue in this part of the Bill. It highlights the importance of regular and frequent reviews of detention in every case. It is implicit in that, certainly as I read it, that detention should not be automatic nor roll on automatically.
We have also added our names to Labour’s Amendment 220 and to Amendment 221, tabled by the noble and learned Lord, Lord Mackay of Clashfern. It was originally shown as being in his name and that of my noble friend Lord Paddick. I respect the noble and learned Lord’s views and I wondered why my noble friend had done a little exercise of his own. It was only on Thursday that I discovered that he had not, when the noble Lord, Lord Pannick, called me and asked me to speak, since neither he nor the noble and learned Lords, Lord Mackay and Lord Judge, could be here this evening—so the unlearned gets to go first on this. I predict the weight of learning might come to bear at the next stage if the Government do not concede on this point.
Paragraph 2 of the schedule deals with conditions of bail and the sub-paragraphs allow the Secretary of State to override the decisions of the tribunal about residence conditions and electronic monitoring. The organisation Justice—at this point one might say Justice without adding “the organisation”, I think—describes the power of the Secretary of State, who will have requested the First-tier Tribunal to impose conditions, which the First-tier Tribunal will have considered and refused, then to overturn the decision as,
“a direct affront to the rule of law”.
The Constitution Committee asks whether it is compatible with the rule of law for the Executive to be able to override the decision of an independent judicial body, and quotes a number of comments from the
noble and learned Lord, Lord Neuberger, in the recent Evans v Attorney-General case regarding freedom of information, when he said that,
“it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including (indeed it may fairly be said, least of all) the executive”.
The Constitution Committee also says in its recent report:
“It is also worth noting that, unlike the matter at stake in the Evans case, electronic-monitoring and residence conditions engage considerations of individual liberty—something that arguably renders the prospect of executive intervention more constitutionally dubious”.
The Constitution Committee goes on to express concern about the provisions being,
“in tension with the principles of the rule of law”,
and says:
“The usual process, should a Minister have concerns about a judicial decision, would be to appeal against it. The House may wish to ask the Government”—
which is what I am doing now—
“to clarify how their proposals comply with the rule of law. The House may also wish to ask the Government why, if the intention is to ensure the use of certain bail conditions for particular offenders (such as satellite monitoring for foreign nationals), they do not simply propose new criteria for the First-tier Tribunal to take into account when setting bail conditions”.
In the Commons Public Bill Committee, the Minister said that the powers would be used “very rarely”. That hardly requires a response other than, perhaps, as I commented earlier, if one is not afraid of something, why not provide for it?
Our Amendments 221A and 221D address matters to which the Secretary of State or the First-tier Tribunal must have regard when determining the grant of bail or bail conditions. One of these is that the person might cause a danger to public health. I would be grateful if the Minister could explain why incarceration would be applied in this case. For instance, would treatment not be more appropriate? If someone is not in the group of people who are seeking asylum and who might be subject to immigration bail—you or me, I might say—but causes a danger to public health, they would not be incarcerated. Other public health provisions might apply but they would not be subject to bail conditions.
The other matter I wish to raise this evening is,
“whether the person’s detention is necessary in that person’s interests”.
My concern is whether this could be used in the case of mental illness and whether it might be open to abuse. It is a very wide provision and there are a number of cases in which the courts have found that the use of immigration detention to protect a person from himself is unlawful. In view of the time I am taking, I will not quote them now, but I have them to hand.
Amendments 221C and 221D are about electronic monitoring and related arrangements, which may require the person to communicate,
“in a specified manner and at specified times”.
Amendment 221C would insert reasonableness. This comes from evidence that a number of your Lordships will have heard during the period when control orders were being applied that controlees were often required to report at times and in places which were very
unreasonable and precluded them from normal activities. It seemed to me that, in another context requiring reporting, reasonableness would be appropriate.
The arrangements in the Bill would allow the exercise of functions by persons other than the Secretary of State or First-tier Tribunal, and my Amendment 221D would insert “on behalf of” those. I assume that is what was meant, or has outsourcing crept even further? Certainly, if it has, whoever exercises the functions should be subject to the supervision and control of the Secretary of State or tribunal in this context. I beg to move.