Special Standing Committee
Tuesday 27 April 1999
(Afternoon)
[Part II]
[Mr. John Maxton in the Chair]
[Continuation from column 1106]
8.30 pm
On resuming—
Mr. Hoon: I beg to move amendment No. 487, in page 24, line 42, leave out from beginning to `advance' in line 43 and insert—
`( ) The detained person may, on the first occasion on which a court considers—
(a) on a reference under section 29, or
(b) an application under the 1971 Act, the Asylum and Immigration Appeals Act 1993 or the Special Immigration Appeals Commission Act 1997,
whether to release him on bail,'.
The Chairman: With this it may be convenient to discuss the following: amendment No. 253, in page 24, line 42, leave out `first reference' and insert `first and second references'.
Government amendment No. 488.
Amendment No. 650, in page 24, line 45, at end insert
`unless the detained person can show there has been a material change in circumstances'.
Mr. Hoon: The Government think it right that at a first bail hearing, whether under the Bill or under other immigration legislation, the detainee should be able to advance any reasons why he should be released. However, we believe that it would be wrong if, at every hearing before the same court, the detainee could put forward arguments that the court had heard previously.
It must be remembered that although the Bill provides for only two routine bail hearings, no limit is set on the number of applications that can be made for bail under other immigration legislation. We believe that it is necessary to guard against the courts facing too many possibly lengthy hearings.
I am willing to consider amendment No. 253, which is in line with the equivalent provisions of the Bail Act 1976, although any change to the law should also contemplate continuing facilities for bail applications to be made.
I regret that I cannot support amendment No. 650, nor can I understand why it has been suggested. As I have already made clear, the court would not be expected to hear arguments that it had heard previously. However, if a material change in circumstances had occurred, the detainee would be advancing new reasons why he should be released on bail. In such circumstances, the court would clearly be able to hear those arguments, whether they were related to the new facts of the case or to the law as it applies to those facts.
Mr. Clappison: I listened carefully to the Minister. It was a useful contribution. I was pleased to hear what he said about amendment No. 253.
Mr. Allan: Similarly, I see a refreshing openness. The Minister referred to a consideration of whether the Bill should have parity with the provisions of the Bail Act 1976, under which an individual could use all his arguments at two hearings. I would stress—I hope that I am pushing at an open door—that the second bail hearing should allow a full discussion at the case.
Although we welcome the fact that the first hearing takes place rapidly, it would seem entirely reasonable that one should have a full hearing after 28 days. We are dealing with people who may find it difficult to put together a case, because of who they are and the circumstances under which they are appearing in court.
I welcome the Minister's commitment to look at the matter, and I am trying to add some weight to that argument, because the second 28-day hearing could be critical. The full case, as presented to the magistrates, would be helpful. The fact is that some matters might not have been heard at the seven-day hearing; their exclusion could be to the detriment of the administration of justice.
Amendment agreed to.
The Chairman: I was not quite clear, Mr. Hoon, whether you were accepting amendment No. 253.
Mr. Hoon: No, I was thinking about it.
Amendments made: No. 488, in page 24, line 44, leave out `reference under section 29' and insert `such reference or application'.
No. 489, in page 25, line 4, leave out from beginning to end of line 9 and insert—
`(6) Any proceedings before a magistrates' court or the sheriff under this Part may be conducted—
(a) on behalf of the Secretary of State, by a person authorised by him, or
(a) on behalf of the detained person, by a person nominated by him,
even though that person is not an authorised advocate.
(7) ``Authorised advocate''—
(a) in relation to England and Wales, has the meaning given by section 119 of the Courts and Legal Services Act 1990;
(b) in relation to Scotland, means an advocate or solicitor;
(c) in relation to Northern Ireland, means a barrister or solicitor.'.
No. 490, in page 25, line 9, at end add—
`( ) ``Rules'' means rules made by the Lord Chancellor under section 144 of the Magistrates' Courts Act 1980 or under any corresponding provision having effect in Northern Ireland.'.Í[Mr. Hoon.]
Clause 34, as amended, ordered to stand part of the Bill.
Clause 35
Use of live television links at bail hearings
Question proposed, That the clause stand part of the Bill.
Mr. Clappison: It is important to reflect on some of the evidence that we have received about television links. The clause will enable television links to be used in bail hearings. Some of those who gave evidence, especially those representing the ILPA, the Joint Council for the Welfare of Immigrants and Amnesty International, expressed anxieties about the clause. It is important to consider the clause in the context of immigration detainees' possible language problems and their being able to communicate with their representatives.
The Crime and Disorder Act 1998 provides for magistrates' hearings to be conducted through television links, and some pilots are taking place. We did not oppose that provision, although we expressed some views and anxieties about it. The same anxieties arise with this clause, and I hope that the Minister will tell the Committee that the Government will reflect on the results of those pilot studies, paying particular attention to the concerns of the organisations that have given evidence to the Committee.
Mr. Gerrard: I should like to make two brief points about the clause. One of its provisions deals with the fact that the detained person should be able to see and hear the court and be seen and heard by the court. However, some of the evidence that we heard questioned the ability of a detained person appearing at a bail hearing under such circumstances to communicate privately with his representative if he so wishes. In a normal hearing, we would expect the person involved to be able to do so. If we proceed with experiments under the clause—which I assume will initially be treated with caution—I hope that we shall ensure that facilities to enable a person involved in a bail hearing taking place through a video link to communicate privately with his representative are clearly specified in the procedures.
We must approach the provision with caution. One of the issues in a bail hearing may be the credibility of the person involved, especially in asylum cases, in which adjudicators must often make decisions about credibility. Those of us who are relatively familiar with sitting in front of cameras will recognise that it is not always easy, especially when one is facing a camera and the other person to whom one is speaking is at the other end of a video link rather than in the same studio. It is easy to understand how someone who is unfamiliar with such circumstances might sometimes not react naturally to questions.
I hope that we shall approach the provision with caution. The ability of the detained person to consult his representative in private is important. I do not suggest that we necessarily need to amend the Bill to specify that, but even if it is not specified, that provision should be made when a bail hearing is conducted in such circumstances.
Mr. Allan: The hon. Member for Walthamstow (Mr. Gerrard) has made some useful points. I trust that the Minister will explain what is meant by having suitable facilities available at the institution. There may be a wide range of what is deemed to be suitable. In a debate on an earlier clause, I mentioned people's wish to be surrounded by those who are supporting them in their efforts to be released from detention. There may be a difficulty if a suitable facility is taken to mean an individual stuck in front of a camera in an empty room in the detention centre or prison in which that person is being held.
Will the Minister consider individuals' ability to consult others, by which I mean their ability to make contact with their legal representative and those who are supporting them in their application for bail during what may be a traumatic process in which their liberty is at stake?
Mr. Mike O'Brien: The clause allows any court that is conducting a routine bail hearing to direct that live television links may be used for the purpose of the hearing. Such a direction may be made only once representation has been made by the parties at the hearing. Representatives will be allowed to make representations about whether it is appropriate that that should happen. There may be circumstances in which it is difficult for the applicant to be present. For example, a television link may avoid delaying a hearing if it has been decided that that hearing should take place on time according to routine procedures and the applicant is in another part of the country. The television link would enable the applicant to see what is going on. It is therefore appropriate for a decision to be made after representation has been made by the parties concerned.
I have made it clear that we do not intend to introduce that measure until the appropriate facilities are in place in courts, detention centres and prisons. Furthermore, the measure will not be used until we are completely satisfied that the detainee has a full opportunity to consult his or her representative in private before and during any hearing conducted by television link. The hon. Member for Hallam will note that I said ``before and during''.
There are various ways of facilitating such a consultation. The advocate does not necessarily have to be in continuous private contact with the person whose application is under consideration. Communication may be conducted via a private link by a representative who is not acting as advocate, but who passes notes to the advocate. Matters are often conducted in that way in courts in which defendants are present. We intend to ensure that, as the person most directly affected by the measure, the applicant is in a position in which he or she can properly carry out his responsibilities and wishes.
We have considered carefully our obligations under article 6 of the ECHR. We are not satisfied that article 6 applies under current Strasbourg jurisdiction. Nevertheless, we are confident that all the safeguards that article 6 offers will be provided at routine bail hearings, whether or not they are conducted by live television link.
The hon. Member for Hertsmere asked us to reflect on the pilot studies. Let me reassure him that we will certainly do that. Obviously, the measure is modelled on some of the work done for the Crime and Disorder Bill. We intend to take that into account in determining the speed at which we proceed to deal with such matters. Such a provision is unlikely to be introduced in the immediate future, except on a pilot basis. We will proceed with a degree of caution.
My hon. Friend the Member for Walthamstow rightly said that it is important to get things right and proceed with caution. I can reassure him that we will do so. I have already confirmed that we envisage that private communication with a representative will take place before and during the hearing.
I am aware that some people may not perform well on television. However, that may not be relevant, as the applicant may be able to give evidence during a bail application, although that will not normally happen. We would wish to make a careful response to the hon. Gentleman's urging for caution before creating circumstances in which the applicant may be asked to give evidence via television link.
It is right to be aware of such circumstances. Our commitment that the representatives will be heard before the procedure is permitted will allow people's anxiety about how they will perform on television to be taken into account before the courts decide whether to use that system.
I therefore hope that Committee members will support the clause.
Question put and agreed to.
Clause 35 ordered to stand part of the Bill.
8.45 pm
Clause 36
Power to provide for certain bail hearings to be before magistrates
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