My Lords, I thank the noble Lord, Lord Anderson, for his introduction to Amendment 71. It raises a hugely significant point of principle for us in the consideration of the Bill, as did the noble Lord, Lord German, with his point about Clause 11.
I am going to spend a couple of minutes reiterating this because I think it is important. As we all know, the Illegal Migration Bill basically means that everybody who arrives irregularly will be detained, without exception. Therefore, the rules around that detention are paramount. The noble Lord, Lord Anderson, reminded us that Clause 11 deals with the detention period. In the Explanatory Notes, it is clear that it is the Home Secretary, rather than the courts, who will determine what is a reasonable period. I suggest that is a phenomenal digression from normal jurisprudence in this country.
I am not a lawyer or a judge, but one of the bulwarks of our constitution and our democracy has always been that it is for the courts to determine reasonableness, not for politicians or Home Secretaries.
The truth of it is that, across the world, we criticise Governments and politicians for interfering and making judicial decisions. We quite rightly do that, for obvious reasons, as the noble Lords, Lord Anderson and Lord German, have just made clear. But it is the Home Secretary who will determine what is a reasonable period for somebody subject to the Illegal Migration Bill to be kept in detention. I find that quite astonishing. The noble Baroness, Lady Bennett, quite rightly and half jokingly, said that it is good to see a lot of noble Lords here—more than would normally be here—because that is what noble Lords opposite are being asked to support. I am sure that nobody believes that the Conservative Government want an autocracy, but it undermines one of the fundamental principles of our democracy to allow a politician to determine for how long somebody should be detained. As I understand it—and the noble Lord, Lord Anderson, will correct me if I am wrong—that goes to the heart of what Amendment 71 is about.
It is totally and utterly unacceptable, given the extent of the power which we are going to give the Home Secretary, that the Government will not—or cannot—tell us how long someone can actually be detained for. It is an unlimited period of time. The expectation is 28 days, but supposing you cannot remove somebody after 28 days. Can you keep them for 29 or 30? What if you still have not removed them—is it 31? Tell me when it is too many; we can go on and on, and if I was doing a filibuster, I would. The noble Lord, Lord Alton, and one or two others will have been in the other place when that has happened, but we will not do that here.
The serious point is: how many days are too many? The Minister has to answer this, because he is asking this Parliament—this Chamber—to allow legislation to go through where people, including children, can de detained for an unspecified period on the say-so of the Home Secretary. How on earth can that be something we think is appropriate? Let the Minister answer that, please, specifically: why is it appropriate for the Home Secretary rather than the courts to determine what is a reasonable period, and how long can someone actually be detained for? Can we have a maximum rather than a minimum? What happens after 28 days?
I have a couple of other points because we want to talk about this properly, so we will do that. I am not going to rush this, because it is a really important point of principle about detaining people on the say-so of the Home Secretary. What are the practicalities of that? As the noble Lord, Lord Sharpe, and others will know, I went to the Government’s helpful fact sheet on the Bill. It asks:
“How many new detention spaces will be required?”
It says that they are building two but does not say how many, so they do not know. It then asks:
“Will the necessary … accommodation be available?”.
I say to the Government: if your Illegal Migration Bill is predicated on detaining everybody who arrives illegally or irregularly—and Clause 11 is headed “Period for
which persons may be detained”—how on earth can the Government not say in their own fact sheet that the places will be available? It just does not make sense.
We not only have a Bill which in principle, in Clause 11, gives real, genuine concerns about undermining one of the pillars and principles of our democracy. We also have a government fact sheet dealing with Clause 11 which cannot tell this Parliament, or the people who read Home Office fact sheets—this one was published on 11 May 2023—that the new detention centres required by the Bill will be built. They cannot say categorically that the numbers of places will be available. If we have a period for which persons may be detained under Clause 11 but the Home Office cannot say where they are going to be detained, what is going to happen? We are told that the Home Secretary needs all these people to be detained, so how will that work when the Home Office cannot tell us where they are going to be detained and whether there will be enough places?
It starts with the very serious principle that the noble Lord, Lord Anderson, outlined for us, which was followed up by the noble Lord, Lord German, about the arbitrary nature of the power that the Home Secretary will have to determine the detention of individuals for an unspecified amount of time rather than that being something which, in the past, this country has said that the courts should do and that a judge should determine. That is a really serious move away from something that has stood our country proud for centuries; and alongside our criticism of the fact that the Bill does not conform to the principles that we would want is its unworkability.
This Chamber deserves some answers on those points. It does not want any platitudes such as, “The Government are considering how to deal with this”. We need some genuine answers with some genuine facts for us to make a determination about the best way forward.