In moving Amendment 16 I shall speak also to Amendments 20 and 21, and included in this group are Amendments 17, 18 and 19. The first of the amendments sets out a new clause headed, “Presumption of liberty”, which covers exactly what it says. I find the term “bail” quite difficult in this context, with its connotations of the criminal justice system. Detention—or imprisonment, to be blunt about it—should require a positive decision: the rebuttal of a presumption, if you like.
The amendment may read as if I am introducing a philosophical debate, which I suppose I am, but in a rather less high-minded way I am seeking to put into the legislation what is set out in chapter 55.1.1 of the Home Office manual, Enforcement Instructions and Guidance, which states:
“The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used”.
I hope that the Minister will not argue that this is invariably followed because, like other noble Lords, I am sure, I have been given a number of examples of detention where it would be hard to argue that that is so. We are told that the UK detains people for longer than any other European country. As of July last year, 27 people had been detained for between 18 and 24 months, 11 for between 24 and 36 months and one person for up to 48 months. In December last year, some 220 people had been detained for more than six months. Many people are now detained in prisons where detention tends to go on for longer periods.
There are also a number of examples of inappropriate detention. Here I turn to my second amendment, which concerns the detention of people with mental illness. I say “inappropriate detention” as being what might be called a commensurate judicial criticism of their treatment and findings that the detention of people who are mentally ill is unlawful and breaches their Article 3 rights. I do not doubt that there will have been cases we do not know about which were settled before a full hearing, as happens a good deal in this area.
6.15 pm
Amendment 20 would remove the statutory provision in the 1971 Act which allows a tribunal to refuse to release on the grounds that the detainee is,
“suffering from mental disorder and continued detention is needed in his interests or for the protection of others”.
Detention can be continued solely because of mental illness. No doubt when the provision was designed it was about protection, but it now seems to assume a rather rosy view of the benefits of detention that is very far from the reality. While hindsight is a great thing, of course, I see no justification for keeping someone in detention on the grounds of their mental health where, were it not for mental illness, the applicant would be released. This is a matter which has been considered from time to time by the courts, and there is a framework for the detention of mentally ill people in the Mental Health Act 1983, where it is necessary in their interests or for the protection of others. This surely must apply to those who are under immigration control just as much as it does to other people. Detention, as I have indicated, does not provide the therapeutic environment that the drafters of the provision presumably envisaged.
One learns so much about new subjects when one starts on a Bill. There is in addition a lacuna in the legislation. Currently there is no power to make a transfer direction using Section 48 of the 1983 Act for immigration detainees held under the UK Borders Act 2007. The power compulsorily to admit such detainees to hospital exists only under Sections 2 or 3 of the 1983 Act. There is a power under Section 48 of that Act to transfer people detained under immigration powers other than Section 36 of the UK Borders Act 2007. The power arises where there is an urgent need for treatment. The lacuna which I have mentioned in Section 48 of the 1983 Act has been raised with the border agency by various NGOs, and the agency’s position is that in its view the lacuna, which it admits to and acknowledges, cannot be fixed quickly as it would require primary legislation. Here we have primary
legislation and I hope that the Minister will consider addressing the matter as we have the opportunity to do so.
Amendment 21 would retain the status quo with regard to the Tribunal Procedure Rules, securing that where the First-tier Tribunal has decided not to release a person on bail, the decision is made during the 28-day period; in other words, to maintain the status quo unless there has been a material change in the circumstances, and it is about that that I would like to ask the Minister some questions. The decision would be taken under the new provision without a hearing. Does that mean that there would be a consideration of the issue on the papers, so that “without a hearing” does not mean that there would be no consideration? I think that is the position but I should like to hear it from the Dispatch Box.
What is a “material change in circumstances”? Does it mean that there is no new evidence, which I understand is the current guidance? I also understand that the Tribunal Procedure Committee does not find it a problem in being able to exercise discretion, although it would be wrong of me to try to put words into its mouth. So what is a “material change in circumstances” and how is it dealt with in this situation?
Finally, with regard to the efficiency of the provision, we are told—I have no doubt that we shall also be told on other points later in this Bill—that an application for judicial review to the High Court is not excluded. That would be more complicated and costly. Is it really the way to go about things, given that the Government are seeking to reduce the use of judicial review, which has grown enormously over the years?
There are other amendments in this group but I shall not attempt to deal with any of them now—it would be impertinent. I beg to move.