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Borders, Citizenship and Immigration Bill [HL]

My Lords, I think that we are on the right track now, even though, as we believe, there are serious defects in Amendment 9. The Government proposed to scrap very late in the day the amended definition of "short-term holding facilities" that they had introduced in the Lords with the new clause now before us in Amendment 9. The Minister explained that he and the UK Border Agency had belatedly realised that the original clause would have redesignated immigration and removal centres, and some prisons and police cells, as short-term holding facilities—something that ILPA had been pointing out to them right from the moment that their Amendment 34 was first tabled. Section 147 of the Immigration and Asylum Act 1999, as amended, would now define "short-term holding facilities" as, ""a place used,""(a) solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed"," or, ""(b) for the detention of— (i) detained persons for a period of not more than seven days or for such other period as may be prescribed, and (ii) persons other than detained persons for any period"." Unfortunately, this new clause does not solve the problem. The definition now includes any police station or prison where a mixture of very different types of person could be held and, in the case of the existing facilities, it would allow non-immigration detainees to be held there virtually indefinitely. The UKBA accepts that, technically, prisons and police cells will be within the definition. However, can the rules on short-term holding facilities apply in these places? Under the Government’s amendment, a person may be held in a short-term holding facility under any detaining power exercisable by any agency of the state and, if he is not an immigration detainee, for any length of time. Short-term holding facilities are manifestly unsuitable for that. It would be harmful to the welfare of all that are held in such facilities if they were to be used in this way. We are struggling to get this right after several attempts, because we have been trying to encompass a whole range of detention facilities, where different classes of persons are held for a variety of purposes, in one definition. The immigration Acts confer powers on immigration officers to detain individuals for short periods but, as Mr Woolas, the Minister, said in another place: ""At present, short-term holding facilities may be used to hold only individuals who have been detained for immigration purposes under UKBA’s administrative powers of detention, and those who have been detained under section 2 of the UK Borders Act 2007, pending the arrival of a police officer".—[Official Report, Commons, 14/7/09; col. 179.]" The Customs and Excise Management Act 1979 confers arrest powers on customs officials who may also need to detain persons for short periods while awaiting the arrival of a police officer. We agree that it is a sensible use of these facilities to allow them to be used by HMRC to detain people for up to six hours, or longer in accordance with the PACE clock where they have been designated for PACE. Otherwise, Section 2 of the UK Borders Act limits the period of detention to three hours, pending the arrival of a police officer, while HMRC officials’ powers are limited to six hours in custody suites or HMRC offices before the suspect has to be transferred to a police station, where, of course, the PACE codes apply, as the noble Lord, Lord West, helpfully explained in his letter of 7 April. We think that it would have been correct legally and in practice to distinguish between, on the one hand, the places where these people can be held, together with persons arriving in the UK—while consideration is being given to their admission—and persons being removed from the UK who are awaiting a flight, and, on the other, places where people need to be held for longer periods under different provisions of the immigration or customs Acts, such as Schedules 2 and 3 to the 1971 Act, which allow detainees to be held for up to five days to examine or remove in places specified in the Immigration (Places of Detention) Direction 2009. At this late stage, we will obviously not come up with a viable set of definitions that would distinguish between the classes of detainees and the places where they may be detained. However, we would like an undertaking that the power to detain people, other than detainees, at the existing short-term holding facilities will not be exercised until the Secretary of State has consulted the Children’s Commissioner, the Chief Inspector of Prisons and the independent monitoring boards, which have been severely critical of the suitability of the facilities at Heathrow and Gatwick, even for the limited purposes to which they are being applied at the moment. Since the statutory instrument establishing the short-term holding facilities rules has not yet seen the light of day, presumably the Government will not implement this clause when it comes into effect, technically on Royal Assent. We would like the Minister to confirm that and to assure us that the powers will not be used in this way until the relevant statutory instrument has been passed by both Houses of Parliament. We understand that the SI will say that the rules do not apply to prisons or police stations, which avoids the problem of conflict between these rules and those already applying in prisons and police stations. That means that the scheme established by Parliament in the 1999 Act for regulating removal centres and short-term holding facilities would no longer apply, or would apply only in part, to some of the places designated. The Bill was intended to be an interim step towards simplification of the law on immigration, but this clause, like much of the rest of the Bill, makes for greater complexity by designating places as short-term holding facilities despite the intention that they are not to be treated as such. We have retabled the amendment that was tabled by my honourable friends in another place on Report. This would ensure that detention in the short-term holding facilities under HMRC and court powers could not exceed a maximum of six hours. The questions asked by the noble Baroness, Lady Hanham, about the grotesquely inadequate facilities at Heathrow—highlighted as recently as April by the independent monitoring board—illustrate the dangers of allowing longer periods of detention in places that have no sleeping and woefully inadequate washing and toilet facilities. It is all very well for the Minister to say that the UKBA has an action plan for remedying these deficiencies, but it is dependent on BAA to provide the premises and equipment. That is bound to take some time, while the powers that we are being asked to confer on the Government come into effect immediately. I hope that we have the support of the Conservative Benches in a matter that has so exercised the noble Baroness, Lady Hanham. I beg to move.