My Lords, before speaking to the amendments in my name and those of the noble Baronesses, Lady Hamwee and Lady Lister of Burtersett, perhaps I might put a more general question to the Minister, to which I do not expect a definitive answer—it may be above his pay grade to give one.
An enormous number of government amendments were tabled just before Report in the other place, none of which was discussed in Committee. Since the Bill has been before this House, the Government have tabled more than 150 amendments; they have received a 350-page report from Stephen Shaw, which they commissioned on the welfare of vulnerable persons in immigration detention, to which they have published a one-and-a-half-page response; they have received a report commissioned by SERCO on detention arrangements in the immigration removal centre at Yarl’s Wood; they have also received an internal report on immigration detention, announced by the Minister at Second Reading, about which no details have been disclosed or released.
This unprecedented volume of associated activity after a Bill has been formally introduced in the other place suggests that the Government do not know exactly what they want to achieve, and that the Bill as currently constructed is not fit for purpose. I speak from the point of view of someone who fervently hopes that the Bill, as ultimately approved, will improve the way in which immigration and asylum issues are conducted in this country, and I bear in mind the increasing strain under which the system is going to come as climate change pressures are added to those it is currently under. Given that, I put it to the Minister that further processing of something to which the Government have already made more than 200 amendments—which must be something of a record—seems a pretty pointless exercise until they have worked out exactly what they intend.
My question to the Minister is therefore in the form of a proposal; namely, that on common-sense grounds alone further processing should be suspended and the Bill temporarily withdrawn, as happened to the Health and Social Care Act 2012, until it has been adjusted to include the Government’s many changes of mind and the implications of any recommendations they accept from the reports they have commissioned. In addition, such a pause would enable them to think again about some of the unnecessary bureaucratic complexity that the Bill, as currently constructed, will add to the demands on already overstretched officials on the front line, when simplicity should be the name of the game.
In speaking to my amendments, I first acknowledge what the Minister said about detention being used only as a last resort. The Government’s short response to the Shaw report states:
“Where it is necessary for the purposes of removal”,
of those with no right to remain in this country,
“and taking into account any risk that an individual may abscond”,
the enforcement action that they take,
“will involve a period of detention (which of course can be avoided if the individual departs voluntarily)”.
As the noble Lord, Lord Rosser, said, immigration removal centres—the official title of places in which immigration detention is conducted—are presumably
intended to be only short-term holding facilities. This explains their lack of suitable facilities for anyone held for more than a few days. However, the Government do not appear to have made up their mind about what rules govern detention in short-term holding facilities because, despite a promise made as long ago as 2002, these rules have yet to be published. True, draft versions appeared in 2006 and 2009 but nothing more. The situation appears to be that announced by the noble Lord, Lord Taylor of Holbeach, in answer to a Question of mine in October 2013, namely that:
“The … Short-Term Holding Facility Rules have yet to be finalised and … there is at present no fixed date for when they will be made”.—[Official Report, 30/10/13; col. WA 261.]
Can the Minister update the House on the current position?
Commenting on the Shaw report the Detention Forum, a network of 30 organisations working in the immigration arena which was mentioned by my noble friend Lord Hylton, has said that the damning conclusions of the wide-ranging recommendations demonstrate that fundamental reform is needed. I would have thought that 350 pages and 64 recommendations deserved more than a mere one-and-a-half pages of government response, particularly when everyone outside the Home Office who knows anything about the way that immigration detention is currently conducted knows that something so obviously flawed is in urgent need of fundamental reform. Report after report by successive chief inspectors of prisons and immigration are nothing more than catalogues of failure which successive Ministers, and senior Home Office officials, have done nothing to correct over too many years. Seen against what those currently responsible must know to be urgently needed, the Government’s three proposals in their miserable response amount to nothing more than a sticking-plaster exercise. I hope that taken overall, my amendments and Amendment 216, moved by the noble Lord, Lord Rosser, will give those responsible for reform a comprehensive list of subjects that any review should encompass.
The Government’s first proposal, to adopt a wider definition of those at risk, is covered by Amendment 216ZC. I declare an interest in their second proposal, as a vice-president of the Centre for Mental Health, which has been commissioned to carry out a detailed assessment of the mental health needs of those held in immigration detention and report next month. Following receipt of this report, the Government then allege that the Home Office and the Department of Health will publish a joint mental health action plan in April. I simply do not believe that a fully comprehensive mental health treatment action plan can be produced in this ridiculously short time. To suggest that it is possible discloses a lack of understanding of what will be required—no doubt spurred on by wanting to give the impression that, after years of masterly inactivity and refusals to listen, urgent action is about to be taken. As Chief Inspector of Prisons I reported on the inadequacy of mental health arrangements in what were then called immigration detention centres in 1998 and, 17 years later, nothing has happened. Is it really likely that they are now to be transformed in a matter of weeks?
The Government’s third proposal is also beyond the capability of the Home Office to deliver, bearing in mind how long we have been waiting for short-term holding facility rules. They say that they will,
“implement a new approach to the case management of those detained, replacing the existing detention review process with a clear removal plan for all those in detention … combined with a more rigorous assessment of who enters detention through a new gate-keeping function”.
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As my Amendments 216ZB and 216ZD point out, there is far more to detaining someone in a removal centre than making a clear removal plan, which is something that should have been an automatic procedure for years.
I now move on to timing. The Government’s response to the Shaw report says:
“It is a long-established principle … that where an individual is detained pending removal there must be a realistic prospect of removal within a reasonable time”.
The committee established by the All-Party Group on Refugees and the All-Party Group on Migration, of which I was a member, recommended that immigration detention should be limited to a period of 28 days and the other place formally voted in favour of that on 15 September 2015. The committee also recommended that,
“the Government should introduce a robust system for reviewing the decision to detain early in the period of detention. This system might take, for example, the form of automatic bail hearings, a statutory presumption that detention is to be used exceptionally and for the shortest possible time, or judicial oversight”.
This appears to be in line with the current statutory requirement on the Home Office that,
“detention should ... be reviewed during the initial stages”—
that is, in the first 28 days.
“This does not apply in criminal casework cases, where detainees come from prison, or remain there”—
in an immigration removal centre—
“on completion of custodial sentence”.
The guidelines also state that:
“Criminal casework cases involving the detention of children must be reviewed at days 7, 10, 14 and every seven days thereafter”.
I submit that, totally wrongly, too many reviews are conducted not by a court or tribunal, but by officials. Noble Lords may have seen an interview with the retiring Chief Inspector of Prisons, Nick Hardwick, which was published in the Guardian on Saturday 29 January, in which he spoke about his anger that comparatively junior officials in the Home Office were able to lock up someone who had not been convicted of anything. He added:
“If you lock someone up in a detention centre, you are punishing them, whether that’s your intention of not … Even if you’re trying not to run it like a prison. Even if you have the best staff in the world … it’s still a prison ... It should be very exceptional that you lock someone up without going before a court, and at the moment, it’s not exceptional enough ... It ought to be a huge decision to lock someone up, and the problem is that if you make that huge decision often enough it becomes not such a huge decision; it becomes routine”.
My Amendments 218, 218A and 218B are designed to ensure that the Secretary of State, having denied civil servants the routine power to lock anyone up, also ensures that detention should be for no longer
than 28 days, after which a detainee should be released on bail, unless that is refused on the grounds that that is not in the public interest by a First-tier Tribunal.
All my amendments reflect my agreement with the Detention Forum that the Shaw review is a damning demonstration of the need for fundamental reform. I do not believe that such reform can be carried out during the time that this Bill is being processed through Parliament. Therefore, in order not to waste the time of either House, I recommend that the Bill be withdrawn so that due consideration can be given to the legislative implications of processing the recommendations contained in reports that the Government have commissioned. There is more than enough evidence of what is required of the system, and many people are only too happy to contribute their expertise to such a process. I await the Minister’s response with interest.