Immigration Bill

Debate between Baroness Williams of Crosby and Lord Ramsbotham

Monday 3rd March 2014 Lords Chamber

[Baroness Williams of Crosby (LD)]

My Lords, I will speak briefly on Amendment 12. I congratulate the noble Lord, Lord Rosser, and the noble Baroness, Lady Smith, on bringing it forward.

It is very striking that the positions of the people mentioned who should be involved in oversight are intended to be independent. That is clear with regard to the IPCC, but is also the case with the Inspector of Prisons, as is exemplified by the remarkable record of the noble Lord, Lord Ramsbotham, when he was Inspector of Prisons, and calls on an old tradition that rules will be enforced and kept in respect of the Prison Service, with a long and remarkable record among prison officers in terms of these expectations. I was a Minister of State in charge of prisons for a while and I was impressed by the level of responsibility shown, particularly by prison officers who had worked in prisons for a period of time. They often had a strong sense of responsibility for those with whom they worked, who were held in prisons in the ordinary criminal justice system. There has been nothing like the same level of expectation regarding rules or ethics within the immigration estate as we had in the Prison Service at its best.

Amendments 9 and 10 have already been discussed and I will not return to them, but I will say very loudly that they show how remarkably a concerned and responsible Minister can alter the culture and attitudes of those for whom he or she is responsible and over whom he or she has oversight. The problem, quite simply, is that the Home Office has not had that oversight, particularly in respect of the outsourcing of responsibility for people who are detained or who are held under the immigration provisions of many earlier Acts. That is only too clear in the complaints and concerns that arise over the handling and management of that estate. We are grateful for Amendments 9 and 10. They are very detailed and have been carefully worked out. However, I repeat the question of the noble Lord, Lord Rosser, about whether there is any training for immigration officers who now have the responsibility for enforcement. I will go further and ask whether the Home Office writes into its contracts with the private companies to which it extends the right to run these establishments a specific requirement that the practices that we hope to be embodied in the code will be upheld. Does it hold them responsible for reporting on any breaches of those rules and codes of practice? Does it hold them responsible for any accidents, injuries or deaths that occur in the establishments for which they are responsible? If the number of those is seen to be unusually high or if they are inexplicable, will real consideration be given to withdrawing the contracts as soon as possible? The contracts should clearly indicate that they are conditional on the proper running of those establishments.

[Lord Ramsbotham]

I will speak to Amendment 13, in my name and that of the noble Lord, Lord Roberts.

I am very grateful to the noble Baroness, Lady Williams, for highlighting some of the points that were in the code of practice that I gave to the Minister, as I mentioned earlier. I did not read out all the points but I did mention that there were three codes that I had produced. One concerns the use of restraint. I will mention the three elements in that, which say that the Home Office must:

“Confirm the Independent Advisory Panel on Non-Compliance Management … as a permanent establishment”,

and that one member must have,

“experience of both the design and use of restraint techniques in a wide variety of settings, both custodial and non-custodial”.

The Home Office must also:

“Lay down precisely what safe and pain-free restraint techniques are acceptable in various situations such as vehicles transporting returnee to airport, transfer from vehicle to aircraft including in crowded airports, and in economy class on board commercial, passenger-carrying aircraft”.

Finally, the Home Office must “specify compulsory training requirements” for detainee custody officers,

“and other escorts, including compulsory continuation training”.

I repeat that because the amendment in the name of the noble Lord, Lord Roberts, and myself, refers particularly to the use of the word “reasonableness”. I am sure that the Minister will agree that it was not reasonable force that caused the unlawful killing of Jimmy Mubenga in an airport, and the 78 other cases that I presented to the Home Office, along with numerous others. I suggest that the problem is that the Home Office has delegated all use of force to the contracting companies without overseeing it or insisting that anyone do so. I suggest to the Minister that it would be a very good thing if the Home Office thought through and tried to define what “reasonable” is.

It seems to me that there is a mnemonic, “JPLANS”, which provides the circumstances that must be honoured in using force. The letters stand for six phrases. The first: is the force “justifiable”? It might be lawful, but that does not make it justifiable. All other options must be considered before it is used. Secondly, it must be “proportionate” to the behaviour and consequence it was intended to prevent. Any force used should always be the minimum necessary to achieve a lawful objective.

Thirdly, it must be “lawful” in all circumstances and, provided the person has done what he honestly or instinctively thought was necessary in all the circumstances, and no more, that would be good evidence that he has acted reasonably and lawfully. Force must never be used as a punishment to intentionally cause pain, injury or humiliation. Fourthly, use of force must also be “accountable”; one must always be prepared to account for any force used. Force should be used only as a last resort, and one must be able to demonstrate that this was the case.

Fifthly, force must be “necessary” in all circumstances, and consideration should be given to any other reasonable alternatives: could the situation have been resolved without the use of force? Were risk assessments properly carried out before the removal to reduce tension and any consequent need to use force? Could this have included a planned meeting between the escort and the person they were escorting in order to try to build up a relationship that might remove the tension?

Finally, was the force used “safe and supportive”? Techniques and procedures must be applied correctly and safely, and the person on whom they are applied must be monitored to ensure their safety. There are some techniques and facilities that are known to give rise to a foreseeable risk of injuries. They are permitted only in extreme circumstances and will have to be justified by the member of staff who uses them.

I do not think that anyone writing “reasonable” without thinking it through can have applied the JPLANS test. I therefore suggest that the Minister considers a definition of “reasonable” whereby any use of force must be necessary, reasonable and proportionate, and applied for the minimum period necessary to achieve the lawful objective. If that definition were in the Bill, rather than just the word “reasonable”, I would find it a great deal easier to accept. I suspect that it would be much more supportive of the regime that I hope the independent advisory panel will impose, which should not consist merely of repeating techniques designed for use in custody that are wholly inappropriate when removing a detainee.