My Lords, I will come to my Amendment 71A in a moment; I will also speak to the opposition to the clause standing part.
I am grateful to the noble Lord, Lord Anderson, for enlightening us on the Hardial Singh principles and for reinforcing the view, expressed by lawyers in all sorts of documents that have come to us, that this clause increases the power of the Government and reduces the power of the courts, and that the balance of power between the three branches of our constitution is therefore being altered by this clause.
The first stage is quite clear: Clause 11 overturns the long-established common law principle that it is for the court to decide for itself whether the detention of a person for the purposes of removal is for a period that is reasonable. That is absolutely critical to prevent people, including the most vulnerable, languishing in detention and having their freedoms curtailed unjustifiably. The United Kingdom Government have always justified not having a time limit on detention because of the involvement of the courts. This is being done away with, and we will now see that detention for a short period pending removal may be much less likely. Again, the poor treatment of people is being used as a deterrent to others, and their rights are being infringed in the process. We believe on these Benches that the courts must have effective oversight. We cannot allow the Government’s power of administrative detention to be expanded. The balance is going in the wrong direction.
The purpose of immigration detention is to facilitate removal, and there is no evidence that these changes are needed to improve removals. They will mean that the Home Office will be able to detain people where there is a barrier to removal or where they are not pursuing removal as diligently as they could be. Given the lack of returns agreements in place—we have just one—this is likely to result in a growing number of
people being detained indefinitely. That is hugely concerning. It would appear that it creates specific powers that people can be detained for longer than the current limited grace period after release has been decided upon: the Home Secretary will be able to detain for a period of time “reasonably necessary” to enable release.
This leads me to my amendment’s point. I would like to probe the Government to find out how and why they can marry the obligations under Article 5 of the ECHR with Clause 11. In its legal observations on the Bill, the UNHCR notes:
“Detention for the purpose of making arrangement for release … is arguably not permissible under Article 5 ECHR”.
How do the Government marry that view with the obligations under Article 5? Has the UNHCR, in their view, got it wrong? If so, what are their reasons for thinking this?
The period for which people will be detained will therefore be very uncertain. This uncertainty has profound mental health implications, including increasing feelings of hopelessness, which is one of the most prominent risk factors linked to suicide. The extended use of detention in such circumstances could leave tens of thousands of people in a long-term state of uncertainty and at an increased risk of suicide.
Of course, Clause 11 applies to all forms of detention, not just for those who arrived irregularly. For example, it is intended to allow a software engineer who overstayed her visa to be detained for far longer than a suspected terrorist, with far less judicial oversight. That is particularly concerning given how extraordinarily complex the Immigration Rules are anyway.
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In line with the Hardial Singh principle, it should be for the courts to assess whether the period of detention is reasonable, and habeas corpus is insufficient as a defence because it is a defence only about whether the detention is lawful, and clearly this Bill would make it lawful. That is the problem about habeas corpus; it is an insufficient tool to deal with these powers. Where we are detaining people is also critical. Judicial oversight must not be purely in the hands of the Secretary of State. I believe that the power in Clause 11 has taken the relationship between the three parts of our constitution in the wrong direction.