The Immigration Bill wasn’t meant to be about detention. When the government was drafting it last year, there was no mention of detaining migrants. With the scathing criticism of the parliamentary inquiry ringing in their ears, the Home Office were doubtless keen to avoid any more parliamentary discussion of detention.
Yet when the Bill returns to the Commons next week, detention will be on all minds. At every stage of the Bill’s progress, parliamentarians have taken any opportunity to lay amendments and express their concerns. MPs and peers do want to talk detention.
The government must have expected them to go away after a few debates. When the Minister finally published in January the Shaw Review into welfare in detention, commissioned by the Home Secretary, he must have thought that he had seized control of the agenda by announcing the government’s own reform programme. Encouraging but vague promises were made to reduce detention, reduce lengths of detention, and do something about vulnerable people in detention.
But the Government failed, and continues to fail, to formally respond to Shaw. With the result that the major questions raised by Stephen Shaw continue to overshadow all attempts to close down the debate. The Government accepts ‘the broad thrust’ of Shaw, but what about the specific recommendations? To end the detention of pregnant women? To introduce an independent element into detention decision-making? To create a safeguard for vulnerable people that actually works?
When the Bill reached the Lords, the Government clearly felt the need to do something. This something turned out to be an amendment requiring the Minister to set guidance on the detention of the vulnerable groups whom Shaw had argued should only be detained in exceptional circumstances. From a legislative point of view, the amendment is meaningless: the Home Office already has extensive policy guidance on detention, and there is no need of a legal requirement to do so. But the message to the Lords was clear: leave us alone.
On the back foot
The Lords have resolutely refused to let the Government off the hook. They inflicted a series of stinging defeats on the Government, including two successful amendments that would put Shaw’s recommendations into law.
Last week’s unexpected vote to end the detention of pregnant women clearly put Ministers on the back foot. They responded with a (previously hinted) announcement of a time limit on detention of pregnant women to 72 hours, extendable to a week with the approval of the Home Secretary.
It appears that a similar regime is envisaged to that of the last-resort detention of children. This would certainly be a major step. Yet ‘ending’ the detention of children was not primarily about creating a 72 hour extendable time limit, it involved a whole host of safeguards that should make detention genuinely a last resort. To date, no safeguards whatsoever have been announced, other than the compassion of Theresa May. Currently, most pregnant women in detention are held for fairly short periods and then released, their detention having been completely unnecessary. Nothing in the latest announcement would require this to change.
Still, time limits seem to be proliferating, despite the Government’s opposition to ‘arbitrary’ limits to indefinite detention. First families with children, then pregnant women – the case against limiting the detention of everyone else is looking increasingly threadbare. The Lords sought to press this argument in the context of the Stephen Shaw recommendation to increase judicial oversight of detention.
The result, voted through by the Lords, was a somewhat awkward compromise. It would set a new expectation that the norm for detention should be 28 days, by requiring the courts to review each person’s detention at that point. It isn’t a time limit, as the courts could in principle continue to approve extensions indefinitely. It also, incoherently, excludes from this new oversight ex-offenders, who are precisely the group most exposed to long-term detention, and the major recipients of the £5 million a year of compensation for unlawful detention revealed this week by the BBC. Given that the courts would inevitably take into account offending risk in reviewing detention, excluding them from oversight makes no sense.
However, make no mistake, this would be a serious change. At the moment, if you are lying in bed in your cell, too mentally ill to instruct a solicitor or make a bail application, no-one outside the Home Office will ever review your detention. In the great majority of cases, you stay in detention until the Home Office deports you or decides to release you. Detention is an executive privilege, to be used by the Home Office as it wishes.
The amendment would change that. It would shine a light into every case of prolonged detention. It would show up the people who should never have been detained in the first place, because there is no prospect of removal, or because they are so vulnerable that being locked up may cause irreparable harm. It would put detention, at least after the 28th day, on the same footing as criminal incarceration: the responsibility of the courts, not the whim of a civil servant.
The pressure for detention reform is now overwhelming. Even the Government has admitted that there is a problem; the Home Office is scrabbling to show that it can reform itself. But bureaucracies change slowly, habits die hard. This Bill is the opportunity for Parliament to impose its will and make sure that reform happens. When MPs vote on Monday, many lives will hang in the balance.
Jerome Phelps is director of Detention Action