My Lords, my name is to the amendment. I made a lot of notes as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, was speaking, but I do not think that I have been given his conclusion. I needed him to deal with all of them. I am well aware that there is opposition to the clause from a number of organisations which do not want to see any exceptions at all. That seems to me to have been the burden of their concerns.
The short point is that the system is not working. We do not live in a perfect world. If we were to create other rules that one might say would support the system as we now have it, I do not believe that they could be made to work. The then Chief Inspector of Prisons commented on how many of the detainees were released back into the community, which poses the question: if they are suitable to be released back into the community, why do they need to be detained in the first place?
The Government’s position is a presumption that an “adult at risk” will not be detained. Our presumption is against detention for more than 28 days, so we start at the other end. It is unambitious to say—as the Government do—that they expect to see a reduction in the number of those who are at risk in detention and for reduced periods. The Written Ministerial Statement which the Government published in January categorises the issues in a way which worries me, separating risk and vulnerability from healthcare. Care and assessment are very closely allied, and I suggest, for instance, that a victim of sexual violence may not be able to explain to a healthcare worker that this is her experience until after quite a long period of treatment. Therefore, looking at the Government’s approach to this, I am concerned.
We already have Rule 35 of the Detention Centre Rules, whose purpose is,
“to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention”.
It is not working. We have that now and there are a great range of problems—in view of the time I will not go through them but I hope that noble Lords will understand that the all-party group, of which I was a member, heard a good deal of evidence from medical professionals about the problems with Rule 35. Therefore if that rule does not achieve what is needed, will guidance—the Government’s Amendment 86—achieve it? I fear that it will not.
Amendment 85 aims to flush out the Government’s view of the conditions of vulnerability listed by Stephen Shaw in his report. It says that a vulnerable person should not be detained unless there are exceptional circumstances, as determined by the tribunal. The Government’s answer will, no doubt, be in Amendment 86, which talks about particular vulnerability—someone being particularly vulnerable to harm if they are detained. We start from the premise that vulnerability is vulnerability, full stop.
There is so much more one could say; I wish I could but I will not. I support the amendment.