My Lords, on the last point, in respect of any answer to a writ of habeas corpus it would be possible to rely upon lawful detention, but the relevant lawful provision would have to be in compliance with the convention.
I turn to notice, a point that was made by the noble Lord, Lord Pannick, when he was referring to the matter of bail. He spoke of the default position. That is very important. It is a matter that was pointedly not addressed by the noble Lord, Lord Ramsbotham, who said repeatedly that it was only after six months that there would be any judicial oversight of detention in the context of immigration. That is not the case. Once a person is detained, it is open to them to make an application for bail. That application is made to a judicial tribunal and will therefore be the subject of judicial determination. The onus will rest very firmly, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, made clear, upon the Home Secretary to justify the detention or continued detention in those circumstances. So it is not a question of judicial oversight arising only after six months: it is available from the outset. What we are providing for is the exceptional case in which an application is not made or is refused and, after a delay of time, should be reviewed.
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The noble Lord, Lord Ramsbotham, also spoke of persons who were confused, could not speak English and had no legal advice, but, with great respect, those who are detained in these circumstances have access to interpreters and to legal advice. Indeed, it might be noted that in the last year for which there are statistics, 2013, there were over 13,000 applications for bail, so it appears that the system for applying for bail
is and was working. I said over 13,000; I should have said 12,373. I apologise to your Lordships’ House. The point is that there are very many applications for bail.
That brings me to an observation that the noble Lord, Lord Ramsbotham, made about the earlier legislation from 1999, which was brought in by a previous Government, and the provision that was then repealed. The reason why it was repealed was that it was clearly, patently and assuredly unworkable. Neither the tribunal system nor the Home Office could cope with such reviews as periods of eight or 36 days. That is why, having regard to the existence of bail and the availability of legal advice and translators, it is proportionate to propose that there should be a review at the six-month point. That is to ensure that even where an individual fails to take the opportunity to apply for bail, the matter will be brought before a judicial tribunal. So far as the workings of that system are concerned, it will be subject to further review by Stephen Shaw in due course.
I turn to the points raised by the noble Baroness, Lady Lister. She asked three questions in particular. First, she spoke about language and the question of “most exceptional circumstances”, and the suggestion that it is not unusual for pregnant women to be detained in the immigration system. Perhaps I can cut across that to this extent: as of today, there is one pregnant woman in the immigration detention system. That gives some idea of the scale of the real and true problem. There is one pregnant woman in immigration detention today. It is an exceptional move, and indeed the further guidance that is being prepared—it will be produced in May and laid before Parliament—will fully address the question of vulnerable persons, including pregnant women, in order that that position can be maintained.
The second question that she asked was about the relevant time from which to take the period of detention. It is important that that should relate to the time at which the Home Office becomes aware of the pregnancy. A person arriving in this country at border control may not be visibly pregnant and may not disclose the fact of their pregnancy, and indeed there may be no facilities available for pregnancy testing. Although such tests are available once they arrive at an immigration centre, they are not compulsory; a person cannot be bound to undertake a pregnancy test against their will. One therefore has to take the relevant point from which the period of detention is determined as being the point at which pregnancy can reasonably be determined.
Thirdly, the noble Baroness spoke about the need for safeguards in the context of the 28-day notice period and cited a particular case—quite an awful one, as she described it—of certain persons being moved without notice in circumstances where they were pregnant. I cannot comment on individual cases. However, I can say that, as a matter of fact and practice, all persons who are subject to removal are given notice of liability for removal, and vulnerable women, including pregnant women, receive a further notice via removal directions. I therefore cannot accept the outline of the case that was given by the noble Baroness. Equally, I cannot comment upon an individual case.
Reference was also made to the facilities at Yarl’s Wood, which have been referred to in another place. Let us make clear that there are specific arrangements in place for the care and management of pregnant detainees at Yarl’s Wood. Midwives from Bedford Hospital NHS Trust visit Yarl’s Wood immigration removal centre once a week, and the centre’s GP and nurses can be accessed seven days a week and can refer any specific concerns to the antenatal clinic early pregnancy unit in the hospital or to other appropriate services. In addition, the centre also has a pregnancy liaison officer, who provides a range of support and welfare services to pregnant detainees, and there is a new care suite which offers enhanced care to vulnerable and pregnant women and is staffed by a dedicated female member of staff. So I do not accept the criticisms that have been levelled at Yarl’s Wood. I am not in a position to comment on historic views as to its sufficiency.
On the question of automatic bail references after six months or 56 days, I would simply acknowledge the observations made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lord, Lord Pannick, in this regard. We have arrived at a proportionate response to this issue. However, the way in which that works will be the subject of the guidance to be published in May, and will be the subject of further review by Lord Shaw—I am sorry, by Stephen Shaw—in due course.