Authorisation

10. In non-urgent circumstances at a contracted-out immigration removal centre (IRC) such as Brook House, Rule 40 and Rule 42 provide that authorisation may only be granted by the Secretary of State. However, it is well established that the Secretary of State may delegate their functions to an appropriate Home Office official.¹ While not defined by the Rules, in my view non-urgent circumstances would include, for example, situations where it is known in advance that a detained person would need to be managed under Rule 40 or Rule 42 and so there is time to seek the requisite authority.
11. In cases of urgency, Rule 40 and Rule 42 state that “the manager of a contracted-out removal centre may assume the responsibility of the Secretary of State” and authorise the use of those Rules, although they must notify the Secretary of State as soon as possible after making the necessary arrangements.² Rule 2 states that “‘manager’ means, in relation to any detention centre, the person appointed under section 148(1) of the Immigration and Asylum Act 1999”.³ During the relevant period, the manager of Brook House for these purposes was Mr Ben Saunders, Centre Director for Brook House and Tinsley House IRC (Gatwick IRCs).⁴ An urgent use of Rule 40 or Rule 42 might be required where, for example, a fight breaks out or a detained individual or member of staff is assaulted.⁵
12. Rule 65 states that the manager of a removal centre may, “with the leave of the Secretary of State”, delegate any of their powers under the Rules to another officer of that centre.⁶ I have not heard or received any evidence to suggest that Mr Saunders ever sought or was granted leave by the Secretary of State to delegate his powers to authorise the use of Rule 40 and Rule 42 to anyone else. Mr Philip Riley (Director of Detention and Escorting Services (DES) within the Home Office) confirmed that the Home Office had been unable to locate any evidence that any such delegation was ever sought by anyone at Brook House under Rule 65 during the relevant period.⁷ I also note that the definition of ‘the manager’ in the Immigration and Asylum Act 1999 refers to a person in the singular being specifically appointed to undertake that role.⁸ Taking all of this into account, there does not appear to me to be any basis within the Rules by which anyone other than the manager of Brook House, Mr Saunders, could have authorised urgent use of Rule 40 and Rule 42 at Brook House during the relevant period.
13. Given all the evidence before the Inquiry, and having regard to the wording of the Rules, I consider that use of Rule 40 and Rule 42 should only have been authorised in the following circumstances during the relevant period:

• in normal circumstances, by the Secretary of State (or an appropriate Home Office official to whom the Secretary of State had delegated their powers, such as Mr Paul Gasson, who was the Home Office Contract Monitor at Brook House during the relevant period)⁹; and
• n cases of urgency, by the G4S Centre Manager (Mr Saunders) where it was impracticable to seek the normal authority in advance.

14. However, the following documents – all of which were issued or agreed by the Home Office – did not appear to me to be consistent with the wording of Rule 40 and Rule 42.

14.1 Between 25 October 2016 and 17 July 2017, an interim instruction issued by the Home Office regarding Rule 40 and Rule 42 was in place.24 It stated:

“Authority for the initial use of Rule 40 or 42 must be granted by an appropriate Home Office Immigration Enforcement Manager of EO [Executive Officer] grade or above in the first instance.”¹⁰

This suggested that only Home Office officials could authorise use of the Rules, even in cases of urgency in

14.2 The Operating Standards Manual states that authorisation “must be with the authority of the contract monitor (in contracted out centres) or the centre manager (in directly managed centres)”.¹¹ It does not distinguish between cases of urgency and non-urgency, and it may suggest, when taken at face value, that only the Home Office contract monitor could authorise use of the Rules in contracted-out centres, even in cases of urgency.

14.3 In July 2017, the Restrictions DSO was introduced, which stated:

“In cases of urgency and if the circumstances are such that it is impracticable to seek the authority required in paragraph 31 in advance, the centre/duty manager … can make the emergency authorisation so that the authority is considered to begin at that point. In such circumstances, the DES manager (or the DES on-call manager if out of hours) must be notified immediately.”¹²

This suggested that, in urgent circumstances, the Duty Manager (ie someone other than Mr Saunders in the case of Brook House) could authorise use of the Rules.

14.4 Schedule D of the G4S contract stated:

• In respect of Rule 40: “In cases of urgency, the Duty Manager may assume the responsibility of the Secretary of State under paragraph (1).”¹³
• In respect of Rule 42: “Temporary Confinement accommodation will only be used for refractory or violent Detainees on the authority of the Secretary of State or, if used in cases of urgency, by the Duty Manager.”¹⁴

This Schedule did not purport to be a formal delegation in accordance with Rule 65, nor did the Home Office seek to suggest that it had this effect.⁷ The provision suggests that a Duty Manager (ie someone other than Mr Saunders in the case of Brook House) could authorise use of the Rules in cases of urgency. G4S, in its closing submissions to the Inquiry, asserted that the Restrictions DSO provided the leave of the Secretary of State for the purposes of Rule 65.¹⁵

15. The Inquiry heard and received evidence that gave the impression of widespread confusion and apparent misunderstanding at an organisational level about who could authorise use of the Rules, even among senior managers (who should have had the most comprehensive knowledge of the Rules), at both the Home Office and G4S.
16. Many witnesses believed that Duty Managers and Detention Custody Managers (DCMs) were permitted to authorise use of the Rules. The documents referred to above may have contributed to this confusion.

16.1 On behalf of the Home Office, Mr Riley stated that in urgent circumstances, if Mr Saunders was unavailable to provide authorisation, this could be done by the Duty Manager instead.¹⁶ His evidence was that, both before and after the introduction of the Restrictions DSO, Duty Managers could authorise urgent use of Rule 40 and Rule 42 where Mr Saunders was unavailable; the Restrictions DSO simply “further clarified” that position.¹⁷ This does not appear to be consistent with the content of the various policy documents set out above. In relation to the interim instruction, although its wording suggests that only Home Office officials could authorise use of the Rules, even in cases of urgency, Mr Riley stated that this was not the case and that this instruction did not alter the position as set out in the Rules.¹⁸ I consider this to be at odds with the wording of the instruction.

16.2 Mr Gasson said that, in cases of urgency, use of Rule 40 could be authorised by a G4S DCM.¹⁹ In contrast, Mr Riley accepted that if that was happening, and the DCM was not also the Duty Manager, it was a failure of the system.²⁰ The Inquiry sought clarification of the Home Office’s position in relation to who could authorise use of Rule 40 and Rule 42. Correspondence was exchanged between the Home Office and the Inquiry, yet the responses did not address the inconsistencies between the Home Office’s approach and the wording of Rule 40 and Rule 42; nor did the Home Office’s Closing Statement.²¹

16.3 G4S witnesses also demonstrated a widespread confusion and apparent misunderstanding about who could authorise use of the Rules. For example, Ms Sarah Newland, Head of Tinsley House and a Duty Director at Brook House during the relevant period, told the Inquiry that a Duty Director could authorise use of Rule 40 if it had arisen as a result of a “spontaneous incident”, but any planned use “had to be agreed with the Home Office”.²² Mr Gordon Brockington, Managing Director of Justice and Government Chief Commercial Officer at G4S, said that Duty Managers would authorise use of Rule 40.²³ Mr Saunders and Mr Stephen Skitt (the Deputy Director of Brook House during the relevant period) said that, in cases of urgency, the Duty Manager or Duty Director would grant the authorisation.²⁴

17. Although ‘Duty Manager’ and ‘Duty Director’ were sometimes used interchangeably by witnesses, my understanding is that they refer to different positions. ‘Duty Manager’ referred to the DCM in charge on the particular shift (also known as the designated ‘Oscar 1’), whereas the term ‘Duty Director’ referred to the on-call member of the Senior Management Team responsible for the management of Brook House on a particular shift.²⁵
18. In any event, a number of witnesses told the Inquiry that DCMs authorised the use of Rule 40 during the relevant period. Mr Saunders, Mr Skitt and Mr Steven Dix (a DCM during the relevant period and now Assistant Director of Brook House) all said that this was the case.²⁶ Mr Daniel Haughton, G4S Support Services Manager at Brook House during the relevant period, stated that this was “standard working practice”.²⁷
19. This was reflected in documentation reviewed by the Inquiry in respect of 236 uses of Rule 40 during the relevant period. Only four instances were authorised by Mr Gasson.²⁸ None was authorised by Mr Saunders.
20. Instead, uses of Rule 40 and Rule 42 were routinely authorised at Brook House by Duty Managers other than Mr Saunders, and by DCMs who were not acting as Duty Managers. For example:

• On 21 June 2017, DCM Michael Yates authorised use of Rule 40 when he was not the Duty Manager.²⁹
• On 16 July 2017, DCM Nathan Harris authorised use of Rule 40 when he was not the Duty Manager.³⁰
• On 29 August 2017, Mr Dix authorised use of Rule 40 when he was not the Duty Manager.³¹

21. In addition, the Inquiry heard evidence that Rule 40 might have been used in Brook House without Home Office authorisation on the basis of urgency, even where there would have been sufficient time to seek it. For example, following an investigation into an allegedly urgent use of Rule 40 on 3 June 2017 in relation to D1538 (discussed in Chapter C.9 in Volume I of this Report), the Home Office Professional Standards Unit (PSU) concluded that “sufficient time existed” on that occasion to allow input into the Rule 40 decision by the Home Office. Its report recorded an action point that consideration should be given to clarifying what constitutes cases of urgency.³² The PSU report also recorded a Home Office employee saying that they “would not be involved in the decision” to place D1538 subject to Rule 40 because he was displaying “quite aggressive, abusive and threatening behaviour towards centre staff”.³³ This showed a misunderstanding of the Rules and led the PSU to conclude:

“Home Office officers appear to be unsure of their responsibility to act as a prime authority in authorising Rule 40 in all circumstances where time allows.”³⁴

22. The evidence above suggests to me that Rule 40 and Rule 42 were poorly understood and were being misinterpreted and misapplied routinely at Brook House during the relevant period. The Inquiry has not identified any basis by which Duty Managers or DCMs at Brook House were able to authorise use of Rule 40 and Rule 42 during the relevant period. Given the restrictions that the use of Rule 40 and Rule 42 impose on the liberty of detained people, and the potentially harmful impact of their use on detained people, it is extremely concerning that the strict authorisation criteria were apparently not understood or being adhered to at Brook House.
23. As described above, the belief that Duty Managers and DCMs were permitted to authorise use of Rule 40 and Rule 42 may in part have been perpetuated or contributed to by the terms of the interim instruction, the Operating Standards Manual, the Restrictions DSO and Schedule D of the G4S contract. However, it appears that G4S, including senior members of its staff, did not question or take any steps to address the apparent inconsistency between the wording of those documents and the Rules themselves, or to identify or seek to reconcile the different understandings within G4S of who could authorise use of the Rules.
24. The widespread lack of understanding about who could properly authorise use of the Rules appears to have been perpetuated by inadequate training in that regard. Detention Custody Officer (DCO) Callum Tulley said that in his training they were “told about rules 40 and 42” but that he “didn’t understand why or when they would be applied”.³⁵ Mr Haughton said that he gained his understanding of Rule 40 “in general knowledge of sort of conducting the rule” and explained that when moving into a more senior role:

“we needed to sort of upskill ourselves slightly in it … I had no formal training when I moved into the role of DD [Duty Director] on the sort of use of rule 40.”³⁶

25. In terms of present-day practice, Mr Steven Hewer, the current Director of the Gatwick IRCs, stated that any use of Rule 40 is agreed in advance by the Home Office, save in urgent cases, when the use of Rule 40 would be immediately reported to the Home Office to obtain authorisation.³⁷ In urgent circumstances, he considered that a Detention Operations Manager (DOM, formerly DCM) or the relevant assistant director or deputy director could authorise use of Rule 40.³⁸ He thought that a “larger percentage” of uses of Rule 40 were pre-authorised by the Home Office now, as compared with the relevant period.³⁹ At present, authorisation of use of Rule 40 and Rule 42 is informed by the September 2020 edition of the Restrictions DSO.⁴⁰ However, the essential requirements for authorisation, as set out in the Rules, have remained the same since the relevant period. The Inquiry did not receive evidence of any delegation having been sought by Mr Hewer or on behalf of Serco under Rule 65 to enable DOMs (or anyone else) to authorise use of the Rules.
26. While the Inquiry did not examine any recent individual uses of Rule 40 and Rule 42, it is concerning that Mr Hewer’s evidence appears to show the persistence of misunderstandings about who can authorise use of Rule 40 and Rule 42 under Serco, which continue to be perpetuated by the terms of the Restrictions DSO in particular. It is concerning that Serco, like G4S, appears not to have questioned, or taken any steps to address, the apparent inconsistency between the wording of documents produced by the Home Office (including the Restrictions DSO) and the wording of the Rules themselves.
27. It is extremely important that both the Home Office and Serco take steps to ensure that Rule 40 and Rule 42 are used only where permitted by law, which includes proper authorisation. It is also concerning that new management personnel and a new contractor do not appear to have led to correction of the poor institutional understanding of these restrictive powers. Evidence received by the Inquiry suggests that widespread confusion and misunderstanding as to who can authorise use of the Rules persist today, and I am therefore recommending that the Home Office clarify the authorisation process as a matter of urgency.

Recommendation 10: Clarification on the use of Rule 40 and Rule 42 of the Detention Centre Rules 2001 The Home Office must amend, as a matter of urgency, Detention Services Order 02/2017: Removal from Association (Detention Centre Rule 40) and Temporary Confinement (Detention Centre Rule 42) and, if necessary, the Detention Services Operating Standards Manual for Immigration Service Removal Centres, to clarify who can authorise use of Rule 40 and Rule 42 of the Detention Centre Rules 2001, in both urgent and non-urgent circumstances, including providing a definition of the term ‘manager’ in Rule 40(2) and Rule 42(2). In anticipation of the update to Detention Services Order 02/2017, the Home Office must issue an immediate instruction to communicate this clarification to staff and contractors operating immigration detention centres.

1. Detention Centre Rules 2001, Rules 40(1) and 42(1). In TM (Kenya) v Secretary of State for theHome Department [2019] EWCA 784, the Court of Appeal held that it was lawful for a Home Office Contract Monitor to perform this function[↩]
2. Detention Centre Rules 2001, Rules 40(2) and 42(2[↩]
3. Detention Centre Rules 2001, Rule 2[↩]
4. KEN000001_001-002 para 3; HOM0332182_003 para 13[↩]
5. Detention Services Order 02/2017: Removal from Association (Detention Centre Rule 40) and Temporary Confinement (Detention Centre Rule 42) (CJS000676), Home Office, July 2017 (updated September 2020), p13 footnote 4[↩]
6. Detention Centre Rules 2001, Rule 65[↩]
7. HOM0332174_005-006[↩][↩]
8. See section 148 of the Immigration and Asylum Act 1999, which states that “a manager” must be appointed for every centre and that person must be a Detention Custody Officer whose appointment has been approved by the Secretary of State[↩]
9. HOM0332162_003[↩]
10. HOM0332163[↩]
11. Detention Services Operating Standards Manual for Immigration Service Removal Centres, January 2005, p51[↩]
12. CJS000676_0012 para 32[↩]
13. HOM000798_131[↩]
14. HOM000798_134[↩]
15. CJS0074153_0066 para 188[↩]
16. HOM0332182_003 para 13[↩]
17. HOM0332182_004 para 14[↩]
18. HOM0332182_002 para 8[↩]
19. Paul Gasson 15 March 2022 202/10-204/12[↩]
20. Philip Riley 4 April 2022 84/19-22[↩]
21. HOM0332162; HOM0332161; Home Office Closing Statement, paras 147-152[↩]
22. Sarah Newland 21 March 2022 212/5-13[↩]
23. Gordon Brockington 31 March 2022 89/20-90/8[↩]
24. Ben Saunders 22 March 2022 185/17-18; Stephen Skitt 17 March 2022 183/1[↩]
25. Sarah Newland 21 March 2022 152/8-17[↩]
26. Ben Saunders 22 March 2022 191/14-23; Stephen Skitt 17 March 2022 185/5-7; Steven Dix 9 March 2022 57/21-23, 58/4-15[↩]
27. Daniel Haughton 16 March 2022 121/18[↩]
28. CJS001707; CJS001662; CJS001720; CJS001797[↩]
29. CJS001232_001; CJS004247; CJS001652_002[↩]
30. CJS001704_039; CJS004228[↩]
31. CJS001279; CJS001734_004[↩]
32. CJS003348_026 para 9.3.2; CJS003348_026 para 9.4.1[↩]
33. CJS003348_025 para 9.1[↩]
34. CJS003348_026 para 9.3.2[↩]
35. Callum Tulley 29 November 2021 56/6-8[↩]
36. Daniel Haughton 16 March 2022 121/5-11[↩]
37. Steven Hewer 1 April 2022 96/6-23[↩]
38. Steven Hewer 1 April 2022 152/1-11. The DCM role is now known as DOM by Serco: Steven Hewer 1 April 2022 12/23-24[↩]
39. Steven Hewer 1 April 2022 97/13-16[↩]
40. Detention Services Order 02/2017: Removal from Association (Detention Centre Rule 40) and Temporary Confinement (Detention Centre Rule 42) (CJS000676), Home Office, July 2017 (updated September 2020[↩]