My Lords, I propose to address a range of amendments relating to Part 3 of the Bill. I shall turn first to government Amendments 82 and 83. During
Committee the noble Lord, Lord Paddick, raised concerns that the Secretary of State’s ability to direct prison and prisoner custody officers to search persons in respect of whom she “intends to make” a deportation order was too wide. While the noble Lord accepted our assurance that it was the Government’s intention to capture those foreign national offenders who are liable to deportation and who have been given a notice of a decision to make a deportation order against them, he asked us to reflect on why such clarity could not appear in the Bill. We have taken on board this point and have therefore tabled Amendments 82 and 83, so that the power is expressed by reference to a person being given a notice rather than simply the intention of the Secretary of State. I trust that this allays the noble Lord’s concerns.
I turn to the matter of bail conditions and, in particular, to the government amendments between Amendments 88 and 112. This is a somewhat lengthy set of amendments to Schedule 9, in response to the concerns raised by Peers about the Secretary of State having the ability to impose an electronic monitoring or residence condition where the tribunal decided not to do so. As I said in Committee, having recognised the constitutional concerns that were raised, the Government have thought again about this. I will try not to take up too much of your Lordships’ time but it may help if I describe the effect of these amendments in a bit more detail, in addition to responding to the probing amendments laid by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick.
Amendments 88, 89, 90 and 91 would replace the current approach with a statutory duty on both the Secretary of State and the tribunal to impose an electronic monitoring condition when granting bail to an individual being deported. This would limit the provision to foreign national offenders or those whose deportation has otherwise been deemed conducive to the public good, such as on national security grounds. This duty would not apply if the Secretary of State considered that imposing electronic monitoring would be impractical or contrary to a person’s convention rights. Just as the Secretary of State or the tribunal must impose an electronic monitoring condition where the duty applies, they must not impose such a condition where the duty is disapplied. If a person wishes to challenge the Secretary of State’s decision that the duty should not be disapplied, they can do so by way of judicial review. Separately from the duty to impose electronic monitoring, the amendments make it clear that the tribunal may not vary an electronic monitoring condition. This is simply a matter of clarification as, in paragraph 4 of Schedule 9, the arrangements for electronic monitoring are a matter for the Secretary of State.
Amendment 89A would mean that any individual granted bail must be subject to an electronic monitoring condition save in exceptional circumstances, including where monitoring would breach the individual’s human rights. This amendment would therefore significantly expand the application of the duty to impose electronic monitoring, which is limited to individuals in the process of being deported. We do not consider this amendment necessary. In non-deportation cases, electronic
monitoring should remain a discretionary condition that the Secretary of State or the tribunal can impose having weighed the individual’s circumstances, as they are not as intrinsically high risk as the deportation cases. In reaching that decision, the tribunal and the Secretary of State will continue to be bound by Section 6(1) of the Human Rights Act, which makes it unlawful for a public authority to act in a way which is incompatible with a convention right.
Amendment 91A would mean that the Secretary of State could have regard to obstacles which are insurmountable only when considering whether electronic monitoring would be impractical. This would set the bar far too high. Even tremendous difficulties in making arrangements for electronic monitoring would not fall within this, so the Secretary of State could in such circumstances be precluded from deeming monitoring to be impractical because the difficulties she faces are not, technically, insurmountable. For example, the Secretary of State could spend millions of pounds putting in place new infrastructure to overcome an obstacle.
Amendment 91B would prevent the Secretary of State from considering matters such as a person’s risk of absconding or reoffending when prioritising the limited resources available for electronic monitoring. I make it clear that where the duty to impose an electronic monitoring condition on a deportee is disapplied because of impracticality or the individual’s human rights, this does not mean that the individual may not be released on immigration bail. All the relevant factors must be taken into account by the tribunal or the Secretary of State when considering whether it is appropriate to grant immigration bail, and other conditions could be tailored to ensure that risk is managed in lieu of electronic monitoring.
Amendments 92 to 97 make provisions for the circumstances in which an electronic monitoring condition on an individual being deported must be removed, and if a deportee is not currently subject to monitoring, then the circumstances in which it must be imposed. Amendments 98 to 100 expand the circumstances in which the Secretary of State may provide accommodation support to an individual on bail to include where it is the tribunal that imposes a residence condition. Amendments 101 to 103 apply the duty to impose monitoring to grants of immigration bail to deportees who have been arrested for breach of bail.
Amendments 104 to 106 amend paragraph 10 on the transitional provisions to prevent the electronic monitoring duty from automatically applying to those persons who routinely transition on to new immigration bail. The amendments also provide that regulations made in accordance with paragraph 10 may allow the Secretary of State to determine how the duty is to apply to transitional cases.
Amendment 106A seeks to amend proposed new sub-paragraph (2A) to remove the ability of transitional regulations made under Clause 86(1) to modify proposed new paragraphs 6A or 6B in how they apply to the transitional cohort. Proposed new sub-paragraph (2A) was drafted to allow the Secretary of State flexibility to manage this cohort so that she can prioritise in deciding when to apply the electronic monitoring duty to those deportees who are subject to immigration
bail before commencement. Finally, Amendments 107 to 112 simply ensure that, as a result of the above amendments, the Special Immigration Appeals Commission can be substituted for references to the First-tier Tribunal where appropriate.
I hope that these amendments allay the concerns expressed by your Lordships and therefore ask that Amendments 89A, 91A, 91B and 106A be not moved. I beg to move Amendment 82 and ask your Lordships to support Amendment 83 and the government amendments between Amendments 88 and 112.
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