Post by Raphael Schlembach. Raphael is a Senior Lecturer in Criminology at the University of Brighton, UK. His research focuses on protest, policing and political sociology, with a current interest in the politics of public inquiries. Together with Deanna Dadusc, he convenes a third year undergraduate module called ‘The Criminology of Borders’.

Photo credit: The Independent.

On 5 November 2019, the Home Secretary announced a full public inquiry into the mistreatment of immigration detainees at the Brook House immigration removal centre near Gatwick airport.  It responds to the BBC Panorama programme Undercover: Britain’s Immigration Secrets, which had used covert footage to reveal a toxic culture of verbal and physical abuse of detainees who can be held indefinitely in prison-like facilities.

Set up in accordance with the 2005 Inquiries Act, this statutory inquiry will have the power to compel witnesses to give evidence and appear in public sessions. Crucially, this means that former employees of G4S, the security firm at the centre of the investigation, cannot avoid scrutiny. However, the inquiry does not have the power to establish any person’s criminal liability. In a new research project, I am interested in following the work of the Brook House inquiry and in exploring its ability to hold immigration detention practice to account. 

How does a public inquiry work?

The function of a public inquiry, unlike that of a criminal trial, is primarily inquisitorial. The role of the Inquiry Chair – Kate Eves, an independent consultant who had worked for the Prisons and Probation Ombudsman – is to gather information and make recommendations, rather than responding to specific complaints in an adversarial court process.

While there is no standard from of statutory inquiry, its powers and responsibilities are provided for by the 2005 Inquiries Act. In accordance with this legislation, inquiries are generally established where a government minister believes that an event or series of events have caused significant public concern.

This is not the case with the inquiry into Brook House. Here, the government actively tried to avoid the establishment of a full inquiry. Two former detainees, known only as MA and BB, brought a claim in the High Court against the Home Office. They argued that the secretary of state had not sufficiently investigated the alleged human rights abuses in Brook House. The High Court agreed and ordered the conversion of a special investigation by the Prisons and Probation Ombudsman to a full statutory inquiry.

While inquiries are chaired by a single person, typically by someone with a legal background such as a judge, they can also appoint a panel of advisors. This is seen, sometimes, as a way to increase the level of trust between inquiry participants and the Chair. Ideally, panels should be made up of advisors with relevant expertise or understanding of the matters to be investigated.

The appointment of an Inquiry Chair can be an opaque process itself. In the case of the Brook House inquiry, the designated chairperson was the current Prisons and Probation Ombudsman, Sue McAllister. However, she recused herself and handed the role to Kate Eves who had led the special investigation into Brook House so far, thereby ensuring continuity in the process.

The terms of reference

Public inquiries are set up with precise terms of reference, issues by a government minister. In practice however, the Chair has significant scope in how he or she wishes to interpret or influence the terms. 

The Inquiry’s purpose is to investigate the allegations of physical and psychological abuse made by two complainants formerly detained in Brook House, as shown on the BBC Panorama programme in September 2017, and to make recommendations to the Home Office. In particular, the terms of reference for the Brook House inquiry are to investigate:

1) The treatment of complainants, including identifying whether there has been mistreatment and identifying responsibility for any mistreatment.

2) Whether methods, policies, practices and management arrangements (both of the Home Office and its contractors) caused or contributed to any identified mistreatment.

3) Whether any changes to these methods, policies, practices and management arrangements would help to prevent a recurrence of any identified mistreatment.

4) Whether any clinical care issues caused or contributed to any identified mistreatment.

5) Whether any changes to clinical care would help to prevent a recurrence of any identified mistreatment.

6) The adequacy of the complaints and monitoring mechanisms provided by Home Office Immigration Enforcement and external bodies (including, but not limited to, the centre’s independent monitoring board and statutory role of Her Majesty’s Inspectorate of Prisons) in respect of any identified mistreatment.

While there is little provision for a systematic fact-finding mission into the purpose and practice of immigration detention more widely in the UK, this is not necessarily excluded from the scope. Many of those with an interest in the Inquiry’s work – charities, campaigns or visitor groups, for example – will want to see an investigation that touches on issues of alternatives to detention and time limits.

What could be achieved?

Groups that support people held in immigration detention have cautiously welcomed the forthcoming inquiry, though they are wary of a drawn out process. The Home Office has signalled that it would like to see a final report by the end of 2020, which is more than three years after the BBC Panorama programme was broadcast. Campaigners also want to see the fundamental injustice of administrative detention addressed. 

Here, the Inquiry Chair could look at previous investigations, such as the government-commissioned report by the former Prisons and Probation Ombudsman Stephen Shaw. While not criticising the continued existence of indefinite immigration detention directly, Shaw’s review into the welfare of vulnerable immigration detainees established the link between the over-use of detention and welfare harms. He was categorical in his conclusion, stating that ‘there is too much detention… whether by better screening, more effective reviews, or formal time limit — it ought to be reduced’.

Crucially however, front and centre of any public inquiry is a public interest in the subject matter. In my view, the Chair would fail in her responsibility to alleviate the public concern over detainee abuse if she restricted herself to reviewing existing evidence and making recommendations to the Home Office on that basis. Open evidence sessions, hearing from a wide range of voices, are needed if the approach adopted is to gain the confidence of the public. It is hoped that it can proceed by designating former detainees, migrant support groups, human rights organisation and campaigners as core participants in the inquiry – and open up a genuine public conversation about the harms of and alternatives to immigration detention.

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How to cite this blog post (Harvard style) 

Schlembach, R. (2020). The public inquiry into Brook House – what to expect. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/03/public-inquiry-0 [date])