My Lords, I warn the Minister that during the previous Session the noble Baroness, Lady Lister, gained a reputation as a terrier on these issues. Actually, a number of us were badged as terriers, and she was the leader of the pack. She was very energetic in her critiques, particularly and quite successfully on the detention of pregnant women.
It is depressing to have to have this debate. When the Brook House scandal surfaced, three of us, cross-party, met the relevant Home Office Minister. I asked why the Home Office had not terminated the contract with the provider and whether the contract gave the Home Office the right to terminate in the event of such egregious behaviour. The answer was that the same individuals would be rehired whoever the provider was. This was not a matter of TUPE; it was about who would apply. I continue to have anxiety about the terms of the contracts that the Home Office lets, but, of course, commercial confidentiality means that one cannot go further than that.
We have not got the running of detention right, if there is to be detention, especially for more than a minimum period, but that is not for today either. However, this compounds the importance of guidance. I have always thought that anyone seeking asylum or who is detained, is likely to be vulnerable—this is “and” not “or”. I had forgotten that the 2016 Act refers to people who are “particularly vulnerable”.
The whole of this population is vulnerable, but not all of them are protected under the legislation and the guidance.
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We have so often discussed the impact of detention: the very fact of being detained, as well as the conditions of detention. The noble Baroness used “imprisonment” in that last section. “Detention” is a softer term than “imprisonment” or “incarceration”, but I do not think it necessarily reflects a softer situation. There is the lack of hope, how the impact of the experiences which led to seeking asylum are compounded, the impact on children and, as has just been mentioned, the independent monitoring board’s recent report on the detention of families at Gatwick and on how badly affected children are by that.
My noble friend will remember that at the start of the coalition Government, the Liberal Democrats were adamant that there should be no detention of children. What we ended up with was the accommodation at Cedars. The Gatwick IMB report tells us that since 2017, 48 families have been held at the family PDA but only six have been removed. It puts in context what we put people through, probably for no good reason.
People who are at risk at home and at risk in the UK when they are in detention are very often from the LGBTQI+ community. I refer to the prejudiced attitudes of some staff—I emphasise some—although they are not specifically mentioned in the guidance. It has been questioned whether this failure to mention that group of people is in accordance with the equality impact assessment.
I understand that the new Government are facing a hugely difficult situation, but I hope, at least, that if detention capacity has to be retained or increased, there can be a focus on the conditions of detention, not just what it is like for the detainees but indeed for the good staff who work in these centres.
One of the changes to the statutory guidance seems to reduce the efficiency of the process. It is the deletion of the provision that victims of torture,
“with a completed Medico Legal Report from reputable providers will be regarded as meeting level 3 evidence”.
I understand from someone who has worked in the field with detainees in immigration detention and in conventional, as it were, prisons, that this automatic recognition really helped to move the process along. I guess this was particularly in the days of detained fast track. This change risks a further deterioration in a detainee’s health. It was not unusual to hear the previous Government suggest that people were trying to game the asylum system, and I dare say some do, but this change to the guidance seems to be giving the Home Office the power to obtain a second opinion in a way which is almost gaming the system on that side of the situation, giving itself the chance to do just that. This is a highly skilled—I might say niche—type of work, and not that many doctors and psychologists have experience of it. The guidance specifies matters to be taken into account, which may sound reassuring, but I think it must give scope for the development of thinking
about and understanding mental health and trauma, and there is a danger of the guidance becoming a sort of tick-box exercise.
It leaves me thinking, “What about treatment?” We are talking about the detention and assessment of a detainee. The next discussion should be about treatment. One also wonders whether the people affected by this are actually a flight risk, which is of course where some of this comes from.
I am pleased to see the chair of the Secondary Legislation Scrutiny Committee listening to this. I hoped I might persuade him to join in. I do not want to steal his thunder, but he has rather encouraged me to do so. The committee has drawn the instrument to the attention of the House on the grounds that it is politically or legally important—I would say both—because of the underlying public policy. I am sure that the Minister will have had drawn to his attention the committee’s concerns, not just on this instrument but over a period, about the quality of explanatory information coming from the Home Office. The report talks of
“doubts about the appropriateness of the Home Office’s overall approach to policymaking, which too often appears to react to events, rather than proceeding from rigorous analysis and being supported by evidence”.
I know that it would not refer to policy-led evidence in a formal document, but I am going to do so.
The committee reports that the data does not provide compelling evidence either way on the need for the second-opinion policy, and suggests that the Home Office should monitor the effects closely. My addition is that that may be more difficult in the absence of an impact assessment. The committee adds that the Home Office should publish the results—quite right. I look forward to hearing what the Minister has to say about that, as well as the subject of this SI.