Stephen Shaw’s Equanimity – Evidence to the Home Affairs Select Committee on the Shaw Review and Government Response.

Stephen Shaw gave evidence to the Home Affairs Select Committee on 9th February 2016 regarding his ‘Review into the Welfare in Detention of Vulnerable Persons’.   Maybe surprisingly, he told the Committee “I am conscious that in the House of Lords last week there was some criticism of the written ministerial statement in response to the Report – perhaps curiously I don’t share that criticism”.  

The House of Lords had certainly been highly critical of the Government’s response so far.  Interestingly, however, Stephen Shaw stated he was pleased by the reaction of the Govt. 

He felt two things were working in the Review’s favour, “leaving aside the moral and ethical arguments”.  First, “the things that the Prime Minister has been talking about in respect of the Prison Service”, and second, “you’ve got significant sums of public money involved and in my view quite a lot of that public money could be better expended in ways which would – keep people out of detention”.  Reiterating how “one of the underlying themes in the Report has been the absence of a strategic approach” to immigration detention, he said he believed that the Government seems to “intend to take such an approach”.

In evidence, Stephen Shaw shared the Government’s view of what the three priorities should be in its response to the Review.  Firstly, “those people who are most vulnerable – where the Government talks about developing an adults at risk approach to a whole group of people”.  Secondly, “the incidence of mental health problems within the detention estate and the degree to which detention itself and the length of detention can exacerbate those problems – [where] I strongly welcome the Government’s further needs assessment with the NHS”.  Thirdly, “a new approach to casework management – [where] I think we need to see the detail of that”.  Stephen Shaw concluded these remarks by saying: “those three things would meet many of the first level requirements of the Report – other things either require agreement with other bodies – or they require contractual changes – or they may have resource implications which need to be fitted in with the rest”. 

The contribution that Stephen Shaw has made in ensuring ‘casework management’ is one of the three priorities is potentially very significant.  The terms of reference of the Review, in many people’s eyes, were arguably not as wide as Stephen Shaw gives credit to the Government for.  But, as most experts have long argued and as the Review accepts, welfare in detention, the fact of detention and length of detention cannot be meaningfully separated. 

As Stephen Shaw explained in evidence to the Home Affairs Committee: “A section of the Report is concerned with trying to strengthen and improve the effectiveness of case-working decisions – both the decision to detain and subsequently in immigration reviews”.  Stephen Shaw was emphatic in his evidence that “voluntary removal or voluntary return, must be the objective in every case” and that detention should only be used to effect removal.  Keith Vaz MP and other members of the Select Committee with a dose of theatricality, and Shaw more soberly, underlined the statistics that 60% of those currently detained are released back into the community raising the question of why these people were ever detained in the first place.

Deserving further praise, in our view, is Stephen Shaw’s willingness to remain firmly mindful of the woefully neglected plight of people in prolonged immigration detention having served out a criminal sentence.  Stephen Shaw acknowledged in evidence to the Home Affairs Committee:  “Those who are longest in detention are almost exclusively in the rather ugly phrase time-served foreign national offenders”.  He went on to say, “I encountered two men in Wormwood Scrubs who had been in detention for far far longer than the prison sentence that they had served – and in those cases neither of them had made a Bail application, which then fed into some of my concerns about the effectiveness of the review process”. 

Asked by the SNP’s Stuart C. McDonald MP how many people might benefit from the more robust safeguards to prevent detention and ensure release of the most vulnerable, Stephen Shaw estimated “in the high tens or low hundreds of people”.  Although hugely concerned about these people, Stephen Shaw went on to say: “The thing that would make the biggest impact on the population as a whole are the detention decisions and the average length of detention”.

On the issue of a time-limit Stephen Shaw said in evidence: “I’m very aware that one must act within one’s jurisdiction and one’s terms of reference – so I did not think it was right and proper to solicit formal evidence on the time-limit itself – whether it should be 28 days – or as Parliament had previously debated 60 days – what the implications would be for the existing safeguards, whether there would be exceptions, how they would be policed – I hope that Government in taking forward the broad thrust – I hope that Government will look at strengthening the process of casework management, considering an independent element, looking at the timing of bail reviews and whether there should be some automaticity at some point – and how all of that might marry with a time limit – I don’t take the view that a time-limit is a panacea particularly in respect of criminal casework – nor do I think there is something somehow un-British about a time-limit – we are very used to time-limits in police custody – we’re used to statutory time-limits in the courts”.

Stephen Shaw further used a question from David Burrowes MP on strengthening legal safeguards to set out his expectations in terms of the Government delivering on his recommendations generally.  “There is a limit to my equanimity about these things – I think that sort of time period [12 months] is a fair one – both to see the detail of what has already been announced and to see the response to the remaining recommendations – possibly even the autumn would be early enough for that”.

In respect of women who are pregnant Nusrat Ghani MP spoke of women who are denied access to maternity services and gave the example of “one woman who had to wait three and a half hours for an ambulance while she was bleeding from a miscarriage”.  Asked for his view Stephen Shaw said: “At the moment we are waiting to see the details of the Government’s ‘Adults at Risk’ approach – It seems to me utterly unacceptable that pregnant women should be detained” and elsewhere he said “that argument has I think been strengthened – by the Prime Minister’s remarks this week on the unacceptability of pregnant women and young mums with children being in prison. If that applies to those who have committed offences it seems to me it must apply all the more so to those who are detained having not committed any offence”.

David Winnick MP raised the case of Alois Dvorzac, an 84 year old with Alzheimer’s who died in handcuffs while in detention at Harmondsworth.  Stephen Shaw’s response was: “I’m very familiar with the details of that appalling case – my recommendations couldn’t guarantee that there could be no repetition of such events – but I do talk – about the need for some sort of age limit as well”. 

Of course, a crucial key to ensuring the release of vulnerable people from detention, is the Rule 35 process, so roundly criticised for so long.  In relation to Rule 35, and the concerns recently expressed by Freedom from Torture, Stephen Shaw had this to say to the Home Affairs Select Committee: “I said that Rule 35 wasn’t working in the way in which the Home Office thought it would work because – it actually didn’t have confidence in the processes that it had itself established itself.  It didn’t regard the reports provided by doctors working within IRCs as providing sufficiently independent evidence of torture – I took the view that if you have set up this system yet you are rejecting the vast bulk of Rule 35 reports then something has gone badly wrong.  Now the Government in the past has said what we really need to do is we need to train the case workers better, we need to train the GPs better in completing the reports – I’ve no objection to any of that – but I thought, it seemed to me, we need to think a little bit more boldly about this – are there other people who the Government or the Home Office would have more confidence if they were completing reports showing evidence of torture.  So in this, as elsewhere in the report, I am less concerned about the means than the end here.  The end is that it is absolutely outrageous that somebody who has suffered torture at the hands of somebody abroad then is placed by us in detention with all the echoes of that previous incarceration and abuse which detention brings with it – so I’m relaxed as to the means – whether or not it’s replacing Rule 35 or having a wider body of doctors who could provide Rule 35 reports, which is one of the ways I suggested”.

Turning to other issues more focused on welfare in detention, but which emphasise the underlying need to keep detention to an absolute minimum as a genuine last resort, with strict safeguards, Stephen Shaw also gave the following evidence to the Home Affairs Select Committee.

In response to questions from Tim Lawton MP on mental health and the incidence of mental illness, Stephen Shaw stated: “depressive illness and anxiety is extraordinarily common – is it more common than in the population at large, yes it is much much higher – is it higher than in prisons? – I can’t give you an authoritative answer – my gut feeling is yes”.  Referring to the literature review on the mental health impact of detention commissioned specifically for the Review, he talked of it “demonstrating I think beyond any doubt that the fact of detention is itself an element in exacerbating mental ill health – and that the longer people are in detention, perhaps unsurprisingly, the greater the effect”.

In consequence, Stephen Shaw said he hoped that the Government’s proposed plan with the NHS would see “additional resources across the board in terms of caring for people’s mental health problems – and a wider range of treatments, therapies – whether talking therapies, whether care suites whatever – that those will also be available”.  “Having said all that” he acknowledged “neither in prison nor in immigration detention do I think you can establish the very best mental health care equivalent to that which we might anticipate in the community”.

In response to other questions on Yarl’s Wood and the detention of women Stephen Shaw described a grim situation crying out for particular attention: “I have spent 35 years going into institutions of one kind or another – I had never encountered anything like what I encountered when I visited Yarl’s Wood last year in terms of both the vehemence of what the detainees told me about healthcare provision – whether fairly or unfairly – but secondly just the very level of demand which itself created huge pressures on healthcare provision – so I think there is a particular issue about women in detention and their healthcare needs – I think the detention of women presents some very specific acute healthcare needs”. 

What of James Brokenshire’s reply to Stephen Shaw’s expression of faith in the Government to implement his Report “speedily and in full”? 

Asking about the “kind of numbers and duration reduction” the Government anticipated, Select Committee member David Burrowes MP elicited the following reply from the Minister: “I’m afraid I can’t share those details with you at this Committee because that is still very much work that is being carried out.  What I can say on timing on a number of the deliverable that I have referenced, on the Adults at Risk Policy we intend to publish that by May, in relation to case-working by the summer we want to have the gatekeeper mechanisms in place to improve decisions about who enters immigration detention and scrutinising the prospects and speed of removal.  We then intend by the autumn to have a new team building greater expertise on making detention decisions in respect of those covered by the new adults at risk policy and by the end of the year we want the current system of detention reviews to be replaced by the removal assessments and reviews that I’ve set out and so in addition to that we are clearly then looking at the immigration estate in its totality and therefore the balance of all of those issues together and that is clearly something that is part of Immigration Enforcement’s Business Planning Process”.

Asked about strengthening legal safeguards, James Brokenshire’s reply was: “This is a complete shift and change in the way we are handling cases and review process looking at whether a person should be in an IRC and an independent team from immigration enforcement that would look at that”.

One may be inclined to take James Brokenshire’s response as further evidence of a Government position long on process, short on commitments and rather evasive.  Yet, standing back a little from Stephen Shaw’s initially surprising enthusiasm for the Government’s response to his Review, one sees Stephen Shaw’s deft framing of the issues and recommendations, perhaps leaving Mr Brokenshire’s position looking a little exposed.

By the Detention Forum team