Arbitration and Mediation Services (Equality) Bill [HL]

Debate between Lord Kennedy of Southwark and Lord Keen of Elie

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Lord Keen of Elie]

Do I need to repeat that? With the greatest of respect, this Government and certainly I would never consider that there was any basis for such a proposition. I acknowledge the need for equality not just of gender but in all respects. This Government acknowledge the importance of equality not just in respect of gender but in all respects. But in pursuing it we must have regard to the rights of individuals to perform their own religious functions in a way they see fit. But above all of this stands the rule of law and we remain determined to ensure that those who purport to carry out religious functions do so in accordance with the rule of law and with respect for all individuals, whatever their gender or ethnic background.

I assure the noble Baroness that this Government are concerned about the issues that have been raised, understand the seriousness of the issues that have been raised and appreciate the contributions that have been made by your Lordships’ House in addressing these points. I therefore express to her and all noble Lords who have spoken today my sincere appreciation of their contributions on what is not only an important issue but a complex one.

[Lord Kennedy of Southwark]

We have all heard the Minister’s concern, his appreciation and everything else—but can he just tell us what is going to happen next for the Government?

[Lord Keen of Elie]

My Lords, I thought that I had already explained it. Lest the noble Lord was not in the Chamber at that stage, we are considering the Casey report, which was received in December of last year; we are awaiting the sharia review; and we will bring these materials together in order that we can establish an informed view of the extent of the problem and what the potential solutions may be.

[Lord Kennedy of Southwark]

I thank the Minister for that. I am very worried now when I hear the word “review”. I tabled a couple of Written Questions asking what “review” means when it is mentioned at the Dispatch Box. I was told in a Written Answer from the Government that there is no definition of a review. The Minister will appreciate that when I hear that word I am very worried about what it actually means. I hear what the Minister says but, equally, I hope that he has heard the concern from all round the House in this debate.

[Lord Keen of Elie]

I have of course heard the concerns that underpin this Private Member’s Bill. I have of course also understood the depth of feeling and the depth of concern that there is to see these problems addressed.

Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016

Debate between Lord Kennedy of Southwark and Lord Keen of Elie

Tuesday 12th July 2016 Grand Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the draft telecommunications restriction order regulations provide that the National Offender Management Service—NOMS—and other specified law enforcement bodies may apply to the civil court for an order requiring mobile network operators to prevent or restrict the use of communications devices, including mobile phones, by persons detained in custodial institutions.

The use of mobile phones by prisoners is on the increase. In 2013, NOMS recovered an astonishing 7,451 mobile phone handsets and SIM cards from its estate. In 2014, it seized a record 9,745 devices. That is an average of over 26 handsets and SIM cards seized per day, every day. If these numbers alone are food for thought, then the range of serious crimes committed by prisoners, all enabled by their use of mobile phones, is truly sobering. Prisoners have been convicted of an array of serious organised crimes, all underpinned and enabled by their access to and use of mobile phones. These include: arranging murder; importing automatic firearms into the UK from Europe; smuggling huge shipments of class A drugs from South America; orchestrating the supply of recommissioned firearms across London; controlling the supply and distribution of class A drugs across the UK; two separate and truly audacious prison escape plots—the list goes on. The use of mobile phones by prisoners does not just help them continue their offending in prison but threatens prison security as well. Unauthorised mobile phones are strongly associated with drug supply, violence and bullying inside custodial institutions.

NOMS uses a range of effective passive and active security measures to stop mobile phones getting into prisons and to prevent their use when they do, but the fact remains that it is seizing more mobile phones than ever. The problem is growing and, I say, will continue to grow unless we add to and strengthen the powers that prevent unauthorised mobile phone use. It is a criminal offence for prisoners to possess or use a mobile phone, but because of the relatively small size of handsets and SIM cards and the way prisoners can hide and move these around the prison estate, it is not always possible to take possession of these devices. There is a clear need for new, cost-effective measures to prevent the use of mobile phones which do not rely on first taking possession of the device—powers which allow mobile phones and SIM cards to be put beyond normal use remotely and effectively. These draft regulations achieve those aims.

NOMS or other law enforcement bodies will apply to the county court for a telecommunications restriction order. If the court is satisfied that those devices specified in the application are in use inside a prison, it will order the mobile network operators—MNOs—to take whatever action the order specifies to prevent or restrict the use of those devices by prisoners. I note in passing that each mobile phone has a unique identifier and, therefore, irrespective of the SIM that has been employed, once an order is obtained in respect of the mobile device, it will not be useable inside the prison estate. In practice, the order will involve the MNOs blacklisting the handsets—which prevents the handset from connecting to the mobile network—and disconnecting the SIM cards from their mobile networks. A disconnected SIM card will not work in any handset. These actions will be completed within a maximum of five working days. This quickly puts the mobile phone beyond normal use, without the need to take possession of the handset or SIM.

It may be useful if I summarise the main provisions in the draft regulations. These draft regulations confer on the civil courts powers to compel mobile network operators to disconnect mobile phones and SIM cards that are found by a judge to be in use inside custodial institutions without authorisation. There is no requirement to take possession of the mobile phone first. They provide the National Offender Management Service and other law enforcement bodies with a flexible, cost-effective measure which will add to and strengthen measures deployed to tackle unauthorised mobile phone use in prisons. They will provide that only a judge can order the blacklisting of handsets and the disconnection of SIM cards found to be operating inside prisons. They will protect law enforcement’s capability to disrupt and prevent offending in prisons using covert techniques by providing for court hearings to be held in private, and for non-disclosure of evidence beyond parties to the proceedings. In some circumstances—and only if the court is satisfied that it is not in the public interest —some sensitive evidence may not be disclosed to parties to the proceedings.

The regulations will enable the applicant for a telecommunications restriction order to inform the mobile network operator to remove the terms of a court order if an error is made and a handset or SIM card is incorrectly blacklisted or disconnected, without the need to return to court to vary the order. This safeguard will make sure that any mistakes are quickly put right and that anyone affected by an error can be reconnected as soon as possible in a matter of days, minimising as far as possible the impact of an error on anyone wrongly affected by a TRO. As an additional safeguard, and to make sure that there is independent and transparent scrutiny of these provisions, the use of the draft telecommunications restriction order regulations will be overseen by the proposed Investigatory Powers Commissioner when the draft Investigatory Powers Bill receives Royal Assent. I commend this order to the Committee and beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, as we have heard from the noble and learned Lord, Lord Keen, the order before us today gives an additional power to disrupt the use of illegally held mobile phones in the prison estate by way of a telecommunications restriction order, which requires the telecommunication provider to prevent or restrict the use of communication devices by persons detained in custodial institutions.

I very much agree with the comments from the noble Lord, Lord Ramsbotham, contained in Appendix 1 of the report from the Secondary Legislation Scrutiny Committee. The option to block mobile phone signals seems to me a far simpler and more effective option available, and it seems odd that that was dismissed out of hand largely, it appears, on the grounds of cost. Clearly, there is a serious problem and action needs to be taken. What is proposed here is better than where we are at present, but it is cumbersome—new phones or SIM cards risk being smuggled in, and a constant battle may take place to identify a new device or number so that another application can be made for a telecommunications restriction order. It does not completely solve the problem. As I said, it is cumbersome. It will require multiple applications to court on a regular basis and the more effective option has been ruled out.

As we have heard and read in the papers, mobile phones held illegally in prisons have enabled serious crimes to be committed by prisoners, including the importation of automatic firearms, the distribution of drugs, the sale of firearms, planned escapes and the harassment and intimidation of witnesses. With a list like that, I think the case for a blanket ban, through the use of blocking devices, is compelling. Can the noble and learned Lord tell us what review processes are going to be in place to evaluate this scheme and whether the blocking devices are off the table for good, or is it something the Home Office will reconsider at some point in the future? Although I prefer the blocking option, I fully support the order before us today.

Criminal Justice Act 1988 (Offensive Weapons) (Amendment) Order 2016

Debate between Lord Kennedy of Southwark and Lord Keen of Elie

Tuesday 12th July 2016 Grand Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the order before us today adds zombie knives, zombie killer knives and zombie slayer knives to the list of offensive weapons by amending the Criminal Justice Act 1988 (Offensive Weapons) Order 1988.

The purpose of the order is to maintain public safety. Restricting the supply of weapons which can be used in violent crime or to create a fear of violence is a matter of public concern, which is why the Government are taking this action. Before setting out further details about the order and what action the Government are taking, I will briefly explain why it is necessary to tackle zombie knives.

We are concerned about the availability of these weapons, which can be purchased for as little as £10, have an aesthetic appeal to young men and have no practical use. In 2015, Stefan Appleton, a young man of 17, was murdered with a zombie knife marketed as a “renegade zombie killer machete/head decapitator”.

The Government believe that although the number of sales is relatively low, these weapons have a disproportionate effect because their appearance both creates a fear of violence in law-abiding members of the public and glamorises violence for those to whom these types of knives appeal. The police advise that they are often used as status symbols by gangs in videos inciting violence, and have asked that they are banned.

Unlike other types of knife, zombie knives have no legitimate purpose. They are designed for the purpose of violence and creating a fear of violence, and the way they are marketed, using names such as “headsplitter”, “decapitator”, “skullsplitter”, “chopper” or “executioner”, clearly demonstrates the purposes for which they are intended. Many of the knives are also painted in a way that suggests blood on the handle or blade. These knives pose a danger to the young men themselves and to wider society.

With that background in mind, I turn to the details of the order. Under Section 141 of the Criminal Justice Act 1988, it is an offence to manufacture, sell, hire, offer for sale or hire, or expose or possess for the purposes of sale or hire, a weapon specified in an order made under that section. The importation of any such weapon is also prohibited. The offence carries a maximum penalty of six months’ imprisonment.

The order does not provide for the possession of these weapons to be a criminal offence, but the possession of an article with a blade or point in a public place or school premises without good reason or lawful excuse is a criminal offence under Sections 139 and 139A of the Criminal Justice Act 1988, as is the possession of an offensive weapon in a public place by virtue of Section 1 of the Prevention of Crime Act 1953.

The Government want to add zombie knives to those weapons that are prohibited by order. This will be achieved by using the order-making powers in Section 141(2) of the Criminal Justice Act 1988 to add these knives to the list of offensive weapons to which the section applies. These weapons are defined as:

“the weapon sometimes known as a ‘zombie knife’, ‘zombie killer knife’ or ‘zombie slayer knife’, being a blade with … a cutting edge … a serrated edge; and … images or words (whether on the blade or handle) that suggest that it is to be used for the purpose of violence”.

I hope noble Lords will agree that this order should proceed. It will prevent these weapons being used in violent crime or to instil a fear of violence. I therefore commend the order to the Committee and I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I had never heard of these weapons before I looked at this order a couple of days ago. The descriptions in the Explanatory Notes and impact assessment are truly dreadful, and I am grateful to the Minister for showing me a picture of one of these knives a few minutes ago. I am very happy to support a complete ban on the manufacture, import, sale, hire, and offer for sale or hire of these weapons. The names—zombie knives, zombie killer knives and zombie slayer knives—are just dreadful.

The impact assessment makes it very clear that the benefits outweigh the costs, even in simple monetary terms, but what we are talking about here is not just money but serious injury to human beings and the killing of human beings with these awful weapons. There is no monetary figure you can put on that. If one life is saved or one serious injury prevented by introducing this ban, it will be a step well worth taking, and I am very happy to support the order.

Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2016

Debate between Lord Kennedy of Southwark and Lord Keen of Elie

Tuesday 12th July 2016 Grand Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank the Advisory Council on the Misuse of Drugs for its expert advice, which informed the order we are considering today, which was laid in Parliament on 15 June.

If the order is made, seven methylphenidate-based compounds, as well as their simple derivatives, will be subject to temporary control under Section 2A of the Misuse of Drugs Act 1971 for a further 12 months, thereby maintaining the offences concerning their production and distribution. These compounds were controlled for 12 months under a previous temporary class drug order, which expired on 26 June 2016. The new TCDO came into effect on 27 June and will remain in effect for 12 months, subject to Parliament’s approval.

We are seeking to extend the temporary control following a request from the ACMD for additional time to strengthen its evidence base. This will give it the opportunity to consider the most recent data, including data from festivals, drug-related deaths and information from the drugs early warning system. The additional 12 months will allow the ACMD to consider whether these drugs should be made subject to full control under the Misuse of Drugs Act 1971. The ACMD notes that the initial TCDO has had a positive effect. Police Scotland has reported that in Edinburgh, where there had been reported injecting practices and an outbreak of infections involving some of these substances, there has been a reduction in harms.

These seven compounds are thought to be highly potent stimulants, similar to methylphenidate, a class B drug. One of these substances, ethylphenidate, had previously been marketed online as an alternative to cocaine. Their harms are reported to include anxiety, paranoia, visual disturbance, chest pain and a strong urge to re-dose. Other reported harms include anti-social and violent behaviour, loss of fine motor control, a high risk of bacterial infection and local tissue damage from injecting.

The order enables UK law enforcement to continue action against traffickers and suppliers of temporary class drugs while the ACMD gathers evidence. The order also sends out a clear message to the public, especially to young people, that these drugs and the brand names associated with them carry serious health risks. We know that the change in the law cannot on its own deter all those inclined to use or experiment with these drugs. However, we expect the TCDO to continue to have a notable impact on their availability, and in turn on demand for them, as we have seen with other substances controlled under a TCDO.

We know that legislation alone is not enough and continue to take action across education, prevention, treatment and recovery in order to reduce harmful drug use. We will continue to update our public health messages to inform the public of the harms caused by these substances, using the latest evidence gathered from early warning systems. In these circumstances, I commend the order to your Lordships.

[Lord Kennedy of Southwark (Lab)]

My Lords, as we have heard, the order seeks to renew a temporary control order on the substances listed in the paper for another year, while further work is undertaken and a decision is made on what should happen in the long term. I have no issue with the order whatever. All I would say is that I hope that in granting this temporary ban for another year, we are able within that time to gather the information that the council has asked for, so that it can come back to us to recommend a permanent ban. Clearly, these drugs are harmful to health, and it is important, as the noble and learned Lord said, that education, treatment and advice are made available to young people so that they understand the harm that they can do to themselves and to others by taking them. I am happy to support the order and hope that sooner rather than later we will be able to deal with this issue permanently.

[Lord Keen of Elie]

I am obliged to the noble Lord. I should explain that generally speaking the council has to be helped to make a recommendation about six months before the expiry of a TCDO in order for there to be time to transpose the prohibition into the Act itself. It was therefore thought necessary in the present case that there should be an extension. I do not believe that it is anticipated that a further extension will be required, because further evidence of harm has become available and is now being analysed.

Immigration Bill

Debate between Lord Kennedy of Southwark and Lord Keen of Elie

Monday 1st February 2016 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, on that very point, I know that the Minister cannot do it today, but would he be prepared to write to noble Lords, or to the noble Lord, Lord Paddick, and explain what that training and guidance will be? He said it would be very extensive, and I am sure it will be, but I wonder how long it will take, what the cost will be and how practical it will be.

[Lord Keen of Elie]

I should add that the guidance on immigration officers’ use of powers is set out in the enforcement instructions and guidance, which are published on the UK Government website. But I would be content to write to the noble Lord to set out an outline of the proposed training for those immigration officers who are going to have the limited power conferred by Clause 22 with regard to the preservation of evidence that they believe has been the product of some criminal act.

There was one further point made by the noble Lord, Lord Paddick, about the false positive, as he termed it, and the administrative burden. I respectfully suggest that that burden will be no greater than the burden imposed upon police officers in circumstances where immigration officers believe that they have encountered the product of a criminal act and then telephone or radio the police and invite them to attend a premises. So there is a question of balance here, but it is not, on the face of it, going to be a disproportionate burden when compared to the present circumstances in which the matter is, in any event, brought to the attention of the police.

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[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord. As he indicated, Amendment 194 would remove the ability for immigration officers to seek an all premises warrant where they have a power to enter and search premises for material which is likely to be relevant evidence of an immigration offence under the 1971 Act. As the noble Lord anticipated, one purpose of this is to bring the provisions on such warrants into line with those for police warrants under PACE.

In addition, Amendment 201 is intended to do the same thing, but I should perhaps explain that when the immigration warrants were originally provided for, as running for one month, that was in parallel with the time that a police warrant would run under PACE. Subsequently, the warrant under the Police and Criminal Evidence Act was extended to a three-month period, so they fell out of sequence. The difficulty is that, from time to time, there are joint immigration officer and police operations which involve warrants being granted, and it is not convenient that the immigration warrant should be a period of one month while the police warrant is for a period of three months. The purpose of Amendment 201 in particular is simply to bring the time limit back into line with that which applies for police warrants.

Coming back to Amendment 194 and the use of all premises warrants, it is considered appropriate that an all premises warrant should be available to immigration officers, not only because that is consistent with the form of warrant available to police officers pursuing their own powers but because there are many circumstances in which an all premises warrant will be required for effective recovery of material pertaining to either illegal working or potential offences in respect of landlords and illegal renting. For example, where you have someone who has a number of restaurants employing persons who may be suspected of being illegal immigrants, you may have a warrant in respect of particular premises and then discover that all the records are actually kept elsewhere—in an office, a lock-up, or something of that kind. Therefore, it is appropriate that all the premises that are subject to the control of a particular employer should be available under the warrant, otherwise we would have a very long, drawn-out, step-by-step process of knocking down one domino, going from one warrant to the next one, and so on. It is in these circumstances that it is considered appropriate that an all premises warrant should be allowed in the case of immigration officers. I hope that that addresses the concerns or reservations expressed by reference to Amendments 194 and 201. In a sense, they bring immigration warrants into line with police warrants, but they were in line with police warrants before the amendment to the Police and Criminal Evidence Act. In addition, there are substantive reasons why it is practical and effective for immigration officers to have an all premises warrant facility available to them.

Government Amendments 195 to 200 and 202 to 209 may look rather complex, but have at their core a very simple proposition; that is, in Scotland it is not lawfully possible to secure an all premises warrant and a multiple entry warrant. Therefore, it is necessary to ensure that immigration officers operating in Scotland do so within the bounds of the Scottish criminal justice system.

[Lord Kennedy of Southwark]

I see the need for the amendments, but will the noble and learned Lord explain further how we have had to come to this stage in the Bill—I assume that it was drafted in the Home Office, checked and rechecked, and then went all through the Commons—and now we find that we have to table an amendment because these powers are not available in Scotland? I am surprised that we had to come to this stage to realise that point.

[Lord Keen of Elie]

It may be that the Scots only recently had a look at it. I am not in a position to elaborate, but I hope that the noble Lord will accept that as a potential explanation.

[Lord Kennedy of Southwark]

That is very helpful, thank you.

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[Lord Kennedy of Southwark]

My Lords, this group of amendments concerns the supply of information to the Secretary of State and the establishment of a commission for standards for immigration officers. I was somewhat surprised that without Amendment 212 or something similar—it may need refining—it would be left to the Secretary of State to dispose of nationality documents as they think appropriate, without any further clarifications. It would be useful if the noble and learned Lord, Lord Keen, would confirm that there is no question that these documents will not be returned to the person when they are no longer needed by the Secretary of State or their officials. I understand that we would not want to return the documents to someone who had no right to have them, but if they have been obtained lawfully they should go back to them.

Amendment 215 requires the Secretary of State to establish a commission to make recommendations for an independent oversight board to set standards for immigration officers. Given the sort of powers that immigration officers exercise as public officials, it is right that we should have in place a proper process to look at complaints about their conduct and standards. It would be helpful if the noble and learned Lord were to set out what happens at present. Is this safeguard in place with regard to certain things but not to others, as the noble Lord, Lord Paddick, indicated? Does the noble and learned Lord think that the present system is adequate in all respects?

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Paddick and Lord Kennedy of Southwark, for their observations on these provisions.

Amendments 210 and 211 are essentially the same as those previously discussed in relation to Amendment 191 in seeking to ensure that the Secretary of State may direct a person to supply a relevant nationality document only—and may retain that document only—if she acts reasonably in her suspicion that the person to whom the document relates may be liable to removal from the United Kingdom, and that the document may facilitate that removal.

Amendment 213 is the same as Amendment 189, put forward to Clause 25, in seeking to limit the definition of “nationality document”. The noble Lord, Lord Paddick, observed that I had not addressed the distinction between the term “showing” and the term “might establish”. It respectfully appears to me that it is the distinction between that which is explicit on the face of a document and that which may be inferred from its terms. The terms of a document may not on their face show a particular position but an analysis of the terms of that document would lead to an implication about the source of the document, the person using it or the background of that person. So I suggest that it is the distinction between a document being explicit on its face, and giving rise to what might be termed a circumstantial evidential route to a determination with regard to a person’s nationality or route of travel.

Amendment 212 differs slightly from those previous amendments to Clauses 25 and 26 on the Secretary of State’s power to dispose of documents which she no longer wishes to retain in that it requires the document to be returned to the person who supplied it. However, to answer the question raised by the noble Lord, Lord Kennedy, we again face a difficulty when the Secretary of State is provided with documents which are clearly forged or counterfeit. The desire is to ensure that these should not remain in circulation and therefore be returned to someone who would put them back into circulation or use them again. I hope that that satisfies the noble Lord. It should be acknowledged that some of the bodies supplying documents will not be in a position to establish whether they are forged or fraudulently obtained—but, generally speaking, Immigration Enforcement personnel are able to determine that from the analysis of documents.

As we have discussed, Clause 29 contains powers that enable the Secretary of State to require public authorities, subject to certain conditions, to supply nationality documents to the Home Office for immigration purposes. Schedule 6 lists those public authorities to which the new duty applies. Government Amendment 214A is quite straightforward in terms of its effect in that it adds education bodies to that list: these are schools and further and higher education providers across the United Kingdom. This power will be exercisable only where the Secretary of State suspects that a person to whom the document relates may be liable to removal from the United Kingdom in accordance with a provision of the Immigration Acts, and that the document may facilitate the removal.

I wish to be absolutely clear that this is not a power to require education bodies or, indeed, any of those listed, to collect data or information on behalf of the Secretary of State, or to seize documents from people, as it applies only where the Secretary of State has reasonable grounds for believing that a nationality document is already lawfully in the possession of the relevant body—that is to say, that they hold the document for the purposes of their own functions.

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[Lord Kennedy of Southwark]

The noble and learned Lord has gone through the various bodies to which we can complain. However, there are a lot of bodies to which one can complain about all sorts of different things. Perhaps his officials should reflect that there is a case for bringing all these things together because having all these bodies may not be the best way to run things. As regards the nationality documents, I entirely accept the point about fraudulent documents but if a document is genuine I assume that it would be returned to the relevant person.

[Lord Keen of Elie]

On the last point, the Secretary of State will act reasonably, and is lawfully obliged to act reasonably, so there cannot be any real difficulty about that. On the noble Lord’s first point, our complaints procedure may be so comprehensive that it is difficult for him to get his arms round it. However, I would be content to write to outline that procedure in more detail if he felt that would assist.

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[Lord Kennedy of Southwark]

My Lords, the intervention by the noble and learned Lord, Lord Keen, is helpful in respect of this group of amendments. It starts with Amendments 215A and 216A in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. These amendments seem practical and proportionate. I concur with the points made by the noble Baroness, Lady Hamwee: a person must be released if there is no power to detain and they cannot lawfully be detained, and it does not seem right to use the term “bail”. I particularly agree with the point made by the noble Baroness, Lady Hamwee, and other noble Lords that language must be accurate. People seeking asylum should be seen as victims and not treated as criminals. That is an important point.

Amendment 217, which was tabled by my noble friend Lord Rosser, the noble Baroness, Lady Hamwee, the noble Lord, Lord Paddick and me seeks to add an additional clause that sets out a process whereby somebody detained has a clear procedure to go before the First-tier Tribunal within eight days, then after 36 days and then every 28 days for it to determine whether they should be released on bail. This is an important role for the judiciary, as the noble Baroness, Lady Hamwee, said. The amendment makes provision for detention not to be indefinite and for a proper review process. Depriving somebody of their liberty is a serious matter. It is right that the reasons for detention should be vigorously tested and that the tribunal should be satisfied that there is no other reasonable course but to detain the person. We support this amendment.

Amendment 219 seeks to remove from the Bill the power for the Secretary of State to detain an individual granted bail by the tribunal without just cause. Amendments 220, 222 and 223 would remove the provisions that would allow the Secretary of State to override the decisions of the tribunal with regard to electronic monitoring or residence conditions on immigration bail. Amendment 224 would require the Secretary of State to make provide accommodation facilities for a person released on bail. This is an important provision under the heading:

“Powers of Secretary of State to enable person to meet bail conditions”.

Ensuring that a person has a roof over their head should be a primary concern. Amendments 221A and 221B in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, seek to remove the words,

“causing a danger to public health”,

and,

“in that person’s interests or”.

I particularly look forward to the response of the noble and learned Lord, Lord Keen, on this. The noble Baroness, Lady Hamwee, made an excellent point.

Amendment 221C clarifies that the arrangements to communicate must be reasonable. It is an important requirement. These are difficult matters and the emphasis on the word “reasonable” is very welcome. Amendment 221D makes clear that the functions are exercised on behalf of the Secretary of State. The remaining amendments are in the name of the noble Lord, Lord Bates, and I looking forward to an explanation of them.

[Lord Keen of Elie]

I am obliged to the noble Baroness and to noble Lords for their observations on this part of the Bill and on bail. I notice that we have all referred to “bail” throughout the debate. Going back through various parliamentary reports over many years, the references are consistently to “bail”. It is a term that we understand in this context. That is important because, as the noble Baroness observed, the use of language is significant in this context. It is as well to bear that in mind.

I shall look first at Amendments 215A and 216A on the use of the term “immigration bail”. Let us be clear: no one is seeking to criminalise immigration or to treat immigrants as criminals. It so happens that the term “immigration bail” has come into common parlance in this context. Clause 32 and Schedule 7 are intended to simplify the current powers on bail and temporary release contained in various Immigration Acts, effectively reducing six different forms or statuses to one. The description “immigration bail” was chosen because it is a well-understood concept. The statutory underpinning for criminal bail and immigration bail are in entirely different pieces of legislation. The naming of immigration bail is not about criminalising people. It is about being clear about an individual’s situation. The term “temporary admission” could have been chosen, but it is a less accurate way of describing the status as it would not capture, for example, the circumstances of individuals encountered in the UK without leave or those who had leave but are subject to a deportation order. In these circumstances, we resist the suggestion that “immigration bail”, which is widely understood by those who engage in this debate, should be replaced by “temporary admission”, which is less exact and less accurate as a means of describing the relevant status.

Amendment 217 is on automatic bail hearings. It would require a bail hearing in the tribunal after eight days of detention, then after 36 days and every 28 days thereafter. The Government take matters of liberty seriously and have made clear in the recent Written Ministerial Statement by my right honourable friend the Minister for Immigration that changes to policy and the operational approach to detention should lead to a reduction in the number of those detained and in the duration of detention before removal, especially for the most vulnerable. However, the Government do not consider that introducing mandatory and scheduled bail hearings will aid these reforms. There is already well-established judicial oversight available. Individuals detained under immigration powers have unrestricted opportunity to apply to the tribunal for bail at any time. They can also apply for a judicial review of their detention or for a writ of habeas corpus to the High Court, again at any time.

The current system is flexible by design, both in the interests of justice and in allowing the detainee ready access to the tribunal. Introducing automatic bail hearings at set periods in all cases would be a significant resource burden on the tribunal at the expense of the taxpayer and would take valuable judicial time that could be spent on other matters, potentially prolonging the time spent in detention and denying other appellants timely access to justice. Mandatory bail hearings at set intervals were placed on a statutory footing, as a noble Lord observed, the last time the Opposition formed a Government, being legislated for in Part III of the Immigration and Asylum Act 1999. However, they were never brought into force and were repealed in the Nationality, Immigration and Asylum Act 2002. What was the reason for the repeal? The plans were unworkable in practice and would have been a significant resource burden. That remains the position today, so we resist the amendment.

Amendment 221A would remove the requirement to consider the public health implications of bailing an individual. It is not about incarceration. In order to detain pending removal, there must be a realistic prospect of removal in a reasonable timeframe. Paragraph 3 of Schedule 7 sets out a number of factors that the bailing authority must have regard to when considering whether bail is appropriate and the conditions of bail that should be imposed. Naturally, risk to the public and community is a paramount consideration, whether that is the likelihood of the person committing an offence, the likelihood of the person absconding or the likelihood of the person’s presence in the UK being a danger to public health. This would, for example, be a consideration if there were a pandemic and an individual were infected and detained pending removal. Clearly it would not be possible to detain under immigration powers if the sole consideration was protecting public health and there was no underlying immigration justification for the exercise of the detention power. It is a justifiable power in the context of protecting public health.

Amendment 221B would remove the requirement to consider whether it is in a person’s best interests to be detained before being released on bail. I understand the reason why this amendment has been laid, as when could it ever be in anyone’s best interests to be detained? First, let me be clear on a point of principle. It is the Government’s policy that there is a presumption of liberty and that immigration detention should be used as a last resort. This is long standing and will not change. It is important to put that on the record and I am sure that the whole Committee will agree that this is right.