Immigration Bill

Lord Pannick Excerpts

Tuesday 10th May 2016 Lords Chamber

[Lord Rosser (Lab)]

In the Commons last night, the government Minister confirmed that the Government accepted that there should be judicial oversight of administrative immigration detention, and that was why they had previously tabled a Motion, the effect of which would be that individuals would automatically be referred to the tribunal for a bail hearing six months after their detention began, or, if the tribunal had already considered whether to release the person within the first six months, six months after that consideration.

That amendment was not accepted in this House, which again carried a Motion providing for a 28-day period of administrative immigration detention, after which the Secretary of State could apply to extend detention in exceptional circumstances. The Commons has again rejected the amendment from this House and has instead passed a government amendment reducing the timing of an automatic bail referral from six to four months, since, apparently, the vast majority of persons are detained for less than four months. Will the Government confirm that that bail hearing after four months of detention will be automatic and will not depend on the individual in detention having to initiate the application?

This is an issue which this House has already sent back to the Commons twice. Consideration obviously has to be given to the role of this unelected House in the legislative process as a revising Chamber, inviting the Commons to think again in a situation where the elected Commons and the Government have made some movement—albeit not enough to meet the views of this House—on the length of administrative immigration detention without automatic judicial oversight.

[Lord Pannick (CB)]

My Lords, the noble Lord, Lord Ramsbotham, made a powerful speech. I will say a word in response to it. I am sorry that the noble Lord thinks that the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and I were focusing on the “periphery” last week and supporting a “fudge”, as he put it. Your Lordships need to focus on the noble Lord’s amendment. It provides that, after 28 days, there would be no possibility of detention of a person for immigration reasons other than in exceptional circumstances. Last week I found that not to be something that I could support and I still cannot support it, because a person can be detained only for the purpose of removal and only for a reasonable period for that purpose. There is nothing exceptional about it taking longer than 28 days to remove a person who has been detained for immigration reasons. There has to be discussion with the country to which the individual will be removed and persons being removed often do not co-operate with their removal. There is nothing exceptional about it taking longer than 28 days. Of course, the individual concerned is also entitled at any time to require a judicial assessment of whether it is appropriate for them to continue to be detained for immigration purposes. I am pleased that the Government have moved to a four-month period and I think that is the right result.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support Motion A. I will confine myself to three comparatively brief points. First, as has been made plain, the Government have already moved from the earlier proposal of six months down to four. Yesterday, as those who have read the debate in the other place will know, there was barely a voice and no vote whatever against that proposal.

The noble Lord, Lord Ramsbotham, has few greater admirers than I in this Chamber but, as I suggested earlier, his amendment goes altogether too far. One defect is that it is internally inconsistent. I mentioned this on Report but did not think it necessary to do so in the last round of ping-pong, though I rather regret that now. On its face, it refers in new subsection (1) to detention under any of the relevant powers. These are defined in new subsection (6) and include two dealing with detention pending deportation. However, looking at new subsection (4) of Amendment 84, it does not apply in cases where the Secretary of State is determined that there will be deportation. This is an internal inconsistency.

I suggest that four months properly protects against any risk of what can seriously be called arbitrary detention. One must remember that it is a safeguard over and above the intrinsic ability of those who are detained to seek bail—a safeguard I acknowledge to be appropriate and necessary, not least in the case of those with mental health problems. The proposal in the amendment of the noble Lord, Lord Ramsbotham, that there should be exceptional circumstances to justify detention beyond 28 days, is unworkable. The Minister gave reasons and illustrations, as did the noble Lord, Lord Pannick.

A shorter period, as proposed by the noble Baroness, Lady Hamwee—of whom, again, I am a great admirer—is, frankly, impracticable. Tribunals are already hugely busy and overworked. They really must not be overwhelmed.