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UK Borders Bill

Volume 695: debated on Tuesday 9 October 2007

Report received.

My Lords, before I call Amendment No. 1, may I point out that Amendment No. 1A is an amendment to Amendment No.1? That is not clear from the Marshalled List.

1: Before Clause 1, insert the following new Clause—

“Establishment of UK Border Police Force

(1) There shall be a body corporate to be known as the UK Border Police Force.

(2) The UK Border Police Force shall have the functions of—

(a) detecting and removing illegal overstayers;(b) protecting UK borders;(c) investigating employers of illegal immigrants;(d) preventing and detecting human trafficking; and(e) such other functions as the Secretary of State may by order determine.(3) Membership of the UK Border Police Force shall be comprised of officers from—

(a) the Immigration Service; (b) HM Revenue and Customs;(c) the Serious Organised Crime Agency;(d) specialist port police forces; (e) the Metropolitan Police Security Command;(f) the Security Services; and(g) such other organisations as the Secretary of State shall by order determine.(4) Before making an order under subsection (2)(e) the Secretary of State shall—

(a) publish proposals;(b) consult members of the public and stakeholders; and(c) lay a draft before each House of Parliament.(5) Bodies to be consulted under subsection (4)(b) shall include—

(a) the Metropolitan Police Commissioner;(b) representatives of the Association of Chief Police Officers;(c) the Director General of the Immigration and Nationality Directorate;(d) representatives of the Serious Organised Crime Agency;(e) representatives of the Association of Police Authorities; and(f) such other people as the Secretary of State shall determine.”

The noble Baroness said: My Lords, moving seamlessly on, as one does in this place, and in taking over the burden of this Bill from my noble friend Lady Anelay, I do so knowing that much of it has already been discussed. I have tabled these amendments, which were also moved in Committee, to give myself the opportunity of setting out the policies that we have supported on the proposed UK Border Police Force and to explain why we on these Benches do not believe that the Government’s proposals come anywhere near close to meeting the challenges that need to be met.

The Prime Minister, at his party’s conference, referred to the Government’s intentions in this area. The little he said showed that the new unified border force is new only in uniform. We on these Benches welcome the increased pressure on the immigration agencies to make sure that their efforts are co-ordinated and co-operative, but I am concerned that the Government appear to rest this new initiative on the success of yet another government computer system. I am sure that there are enough examples of computer systems that have gone wrong for many in this House to share my trepidation.

As my noble friend Lady Anelay made clear in Committee, our proposals go much further than the Government are prepared to consider. We would, in essence, create a new, integrated, specialised police service, as has proved successful elsewhere. This is supported by both the previous and current commissioners of the Metropolitan Police and the Home Affairs Committee of another place. As the right honourable David Davis said at the Conservative Party conference, this would give the new force real power: power to stop, search, detain and prosecute not only illegal immigrants but also those who traffic people and those who wish to enter our country in order to attack it. What we have in mind would be a strong and effective measure. In comparison, the Government’s proposals are timid, ineffective and most certainly insufficient to deal with the problem. That is the background. I beg to move.

1A: Before Clause 1, leave out subsection (2) and insert—

“(2) The UK Border Police Force shall have the functions of—

(a) protecting UK borders;(b) strengthening frontier protection against threats to the security, social and economic integrity and environment of the United Kingdom;(c) preventing and detecting human trafficking;(d) maintaining and improving a safe, ordered and secure environment in ports; and(e) such other functions as the Secretary of State may by order determine.”

The noble Lord said: My Lords, I hope that the House is not confused by the fact that the Marshalled List does not show Amendment No. 1A as an amendment to Amendment No. 1, just moved by the noble Baroness. That is apparently a simple clerical error, and I hope your Lordships will allow me to move this amendment.

First, I take the opportunity of welcoming the noble Baroness, Lady Hanham, to our proceedings. Her enormous powers will be fully challenged because she has come straight to the Bill from the legislation that she has just been dealing with so competently—I listened to a few minutes of the debate on the Greater London Authority Bill. Knowing the competent and effective way in which she has always dealt with local government legislation, we will expect no less from her on the equally challenging areas of immigration, asylum and nationality, for which she has now inherited the mantle. That is not to say that we will not greatly miss the noble Baroness, Lady Anelay, whose company we always enjoyed. We hope that we will see something of her from time to time, although we will, perhaps, not hear her speak from the Front Bench quite so much in view of her new duties.

I thought that we had quite a productive discussion at the beginning of the Grand Committee on the sort of legislation that is needed to set up a unified border force, and I thought that the Minister had gone a long way towards conceding the principle when he spoke about the border management programme, under which there is already improved intelligence, joint risk assessment and areas in which the three agencies can work on behalf of each other to increase drugs seizures, reduce people smuggling and counter the threat from terrorism. We also had a reference to the Government’s e-borders system, about which I am not quite as sceptical as the noble Baroness, Lady Hanham, because it is well under way. It is a multi-agency IT programme to deliver common information and risk assessment software on all passengers entering or leaving the United Kingdom. It is scheduled to be in full operation by 2014, although I understand that some components are already delivering substantial benefits. Maybe the Minister can say a bit more about that in his reply. We naturally believe, as we said in Grand Committee, that these functions can be carried out more effectively by a unified border force. To that extent we go along with the noble Baroness, Lady Hanham.

We also consider that, as we have explained and I will not go into the detail again on this occasion, such a force should have jurisdiction only at the ports of entry and should not extend itself into the area suggested by the Conservatives, such as the employment of illegal immigrants or the trafficking of human beings. On trafficking, I must remind the noble Baroness that just before the Recess we had a debate initiated by the noble Lord, Lord Sheikh. The consensus of the House then was that the broad strategy, which is being followed by the Government with the UK Human Trafficking Centre acting as the focal point between the police, local authorities and the voluntary agencies, was the right way ahead. Of course we can all point to areas in which extra resources would be helpful. So, if we are realistic, the convergence of the border agencies into a single unified organisation is likely to come about incrementally and will probably be IT-led.

We welcome the fact that the Government are actively thinking about the problem. We hope that they will seize every opportunity for interchanges of personnel and—to pick up one of the points made by the Minister in Committee—work towards the harmonisation of the cultures of these agencies. I beg to move.

My Lords, I hope that noble Lords will forgive me for being a little confused. I thought that his amendment dealt with designated officers being fit and proper for the purpose and being suitably trained. However, I still think that this is the point at which I would like to talk through the thoughts I have on Report.

The Minister will have been aware from our exchanges in Grand Committee that it was likely that we might return to the devolution issues as Clauses 1 to 4 will not apply to Scotland. The noble Lord in his reply on our last day in Committee promised us that there was no problem in the lack of powers being granted in the Bill to immigration officers in Scotland. He said that,

“police officers will attend and deal with those identified as liable to arrest”.

What then of the other powers the immigration officers in England, Wales and Northern Ireland will have to search and deal with those who assault or obstruct them? One has a vision of every immigration officer in Scotland having to be issued with a mobile phone programmed to speed dial 999 the minute somebody becomes a bit difficult.

At the end of July, the Minister emphasised how closely the Government are working with the Scottish Executive and ACPO Scotland, via, he said,

“the border management programme to agree a suitable framework”.

Perhaps he could inform the House of the outcome of that work and the structure that is envisaged, either today or before Third Reading.

Perhaps the other, rather more worrying aspect, was the Minister’s phrase on that day that,

“the view has been taken that the activity of immigration officers is also a devolved matter.”— [Official Report, 25/7/07; col. GC 203.]

Does that mean that the activities of immigration officials will be subject to devolution issues procedure under the Scotland Act? Noble Lords will be aware that that means that if you disagree with an immigration officer you could take a case to the Judicial Committee of the Privy Council. If the Minister wishes to stand by the meaning of that statement, where is the amendment to the Scotland Act that will bring immigration officers into the devolved structure? Surely this will add complications to the training of these officers—and means in reality that the UK Borders Bill is no longer a borders Bill for the UK but just for England, Wales and Northern Ireland—by adding confusion to the rights of immigrants and also to the powers of immigration officers.

My Lords, I support my noble friend Lady Hanham in her amendment. When the issue was raised by my noble friend Lady Anelay in Grand Committee, the noble Lord, Lord Bassam, said that it was eye-catching but that it ignored the complexity of the challenge. Some of the complexity of the challenge has just been illustrated by my noble friend the Duke of Montrose. I appreciate that this is not a simple matter, but it is very important. The noble Lord, Lord Bassam, said in Grand Committee that the Government,

“retain an open mind regarding the longer term but, at this point, we are not persuaded”.—[Official Report, 2/7/07; col. GC 36.]

I suggest to the noble Lord that it is high time that the Government were persuaded. If we are to have proper control of our borders and to know who comes across our borders anywhere in the United Kingdom, we simply must do better than we are at the moment. We must have a more foolproof method. Whether my noble friend’s proposal is precisely the right one, I do not know, but we really need something better than we have.

Following from what my noble friend the Duke of Montrose said, there is still a remarkable lack of appreciation of the seriousness of the matter in Scotland. That is reflected in the Scots Parliament and by the present Administration. It is rather strange that the Liberal Democrats are moving the amendment to the amendment today, yet their colleagues would not pay any attention to the matter when they were in power in Scotland. It seems that they were remarkably unaware of the seriousness of the position.

Now, the Scottish National Party Executive are saying that they do not want Clauses 1 to 4 to apply in Scotland. That means that they do not want special immigration officers to have police powers anywhere in Scotland. I was speaking to two of our Scottish National Party Members at Westminster only yesterday. They are unaware of what is going on about this. It seems to me that the matter is in fact quite serious. If Scotland is wide open to anyone who comes, the whole of the United Kingdom is wide open, and vice versa. The pressure in Scotland is less at the moment because there is more room for newcomers and there is less concentration of immigrants, so there is less anxiety in Scotland.

The Scottish National Party Administration is very keen to co-operate with the Westminster Government where that is necessary. Mr Salmond has said that over and over again. He is quite right and it seems to me necessary here. Can the Minister tell us exactly where the Government are now with Mr Salmond and his Administration; whether Clauses 1 to 4 will apply to Scotland; and, if not, what is the reason for that? It seems to me that any reason that there was is no longer valid, so I support my noble friend’s amendment.

My Lords, when my noble friend the Duke of Montrose drew my attention to the fact that the Government had said that border controls were a devolved matter, I assumed that there must be some mistake. It is quite extraordinary to have a Prime Minister making speeches telling everyone that they must put flags in their garden and how important it is that we support the United Kingdom and the concept of Britishness and, at the same time, have a Government who are saying that border controls, of all things, should be devolved. Surely border controls are an issue for the United Kingdom as a whole. As my noble friend said, allowing this matter to be left unattended by the Scottish Parliament is leaving the back door—or the front door, as I prefer to see it—open on the United Kingdom.

My noble friend Lady Carnegy is much more tactful than I am. I know exactly what Alex Salmond’s intentions are: to break the United Kingdom and create differences between Scotland and England which will enable him to achieve that by referendum. It is a matter of great dismay that this Government of all governments, with this Prime Minister, should be proceeding in a way that means that the control of our borders is subject to a different view north of the border, as my noble friend the Duke of Montrose said.

My Lords, this Scottish view is most instructive and I look forward to hearing the Minister and being further instructed. I hope that it is in order to refer to Amendment No. 1A before us, which is not to belittle the Scottish questions that have just been raised.

Amendment No. 1A is clearly to be preferred. If I look at the first page of the Marshalled List, I find that paragraphs (a) and (c) of subsection (2) of the proposed new clause in Amendment No. 1 are quite specifically focused in the direction of “illegal overstayers” and “illegal immigrants” and in the case of paragraph (c), the employers of the latter. Of course those are significant questions and I have no doubt that were the House, as I hope it will, to prefer Amendment No. 1A, those would be among the functions that the Secretary of State would by order determine. However, Amendment No. 1, in putting first what it puts first and then adding to it with paragraph (c), contributes to the anxiety around the country and in sections of the press about this whole question.

It is a real question and there are real difficulties both for the country as a whole and for those, as we shall find later in this discussion, who are thought to be illegal overstayers or illegal immigrants. But to list them in this new clause in effectively four points, because subsection (5) is a catch-all, contributes to the danger of ratcheting up anxieties that are much better cooled and taken rationally. I prefer Amendment No. 1A to Amendment No. 1 for those reasons.

My Lords, we seem to be discussing differences and problems that arise between the various jurisdictions in the United Kingdom. I therefore ask the Minister whether he is satisfied that humane practices are now in place when asylum seekers are being transferred from Northern Ireland to Scotland for purposes of detention. There was a very bad case when a pregnant woman was handcuffed on the ferry during her transit from one jurisdiction to another.

Is the Minister also satisfied that the authorities in Northern Ireland are fully on the alert to the possibility of both adults and children being trafficked through the Republic of Ireland into Northern Ireland and thus into the UK? I understand that there was some suspicion of that arising at the Irish port of Rosslare very recently. I apologise for not having given notice of these points to the Minister, but I hope that he will do his best with them.

My Lords, I support the amendment of my noble friend Lord Avebury. Like the noble Baroness, Lady Hanham, I am new to this brief. It is a tall order to take this on part of the way through the Bill, but I have the enormous advantage and privilege of being able to listen and learn from my noble friend Lord Avebury who has worked for so long on these issues. That is what I shall be doing.

My Lords, first, I congratulate the noble Baroness, Lady Hanham, on her tour de force today and for taking on an additional brief with such courage. I also express my thanks to her predecessor in this post, the noble Baroness, Lady Anelay, for the helpful, constructive and forensic way with which she dealt with the issues that this Bill encapsulates and many of the other issues which one might describe as coming within the criminal justice field. I have enjoyed my working relationship with her over many years—answering her questions, dealing with her points and taking on some of the issues that she has raised. I am sure that I shall enjoy working with the noble Baroness, Lady Hanham, who is a redoubtable compatriot and, occasionally, an opponent, and whose company I greatly enjoy.

Having said all those very constructive things and supporting others in making their constructive observations, we should give consideration in detail to the very important amendments moved by the noble Baroness, which have been variously supported and amended in the discussion from the noble Baroness’s colleagues on the Liberal Democrat Benches.

These amendments raise a very serious issue, from which no one dissents; namely, how best to protect the United Kingdom’s borders. For that reason, we believe that not only does the amendment deserve very careful consideration but also all that lies behind it deserves such consideration. I should congratulate the noble Baroness on having moved her amendment in, I think, two minutes. But, in a sense, that reflects on perhaps where we have got to in this debate. I think that the amendment deserves more time than that, certainly in the way in which I shall respond. I apologise to your Lordships' House for the length of time that it will take me to go through some of the issues which have been raised.

The House will know that on 25 July my right honourable friend the Prime Minister announced the Government’s decision to integrate the work of the Border and Immigration Agency and Customs and UK Visas, and to establish a unified border force. The noble Baroness said she thought it would be a useful move, but perhaps does not go far enough. The Prime Minister recognised that other issues have to be resolved and that there may need to be further consideration on how we may integrate that work, move forward and consider other ways and agencies which might be involved in that activity. To that end, he invited the Cabinet Secretary to report on implementation and to examine the case for going further. Noble Lords have observed that in an earlier discussion on this Bill, I expressed some sympathy for the direction of travel in which these amendments take us.

A key aim of the Prime Minister’s announcement was to make the controls over the movement of people to and from the United Kingdom by air, sea and rail more effective, more flexible and more visible. I am grateful for this opportunity provided by the noble Baroness to update the House on that work. The Cabinet Secretary is expected to report to the Prime Minister at the end of this month. His review team has drawn on the experience of all the key departments and senior police officers. For example, the president of ACPO, Ken Jones, is providing very valuable advice. I know that other senior police officers are similarly providing advice.

Decisions on the shape and scope of the unified border force will be taken once the Cabinet Secretary’s report is completed. The future roles of the police, Her Majesty’s Revenue and Customs, the Border and Immigration Agency and other agencies and their position within the unified border force, or in relation to it, will be addressed in the report, along with any considerations about changes to legislation. Importantly, the review will focus on the benefits and costs of structural changes and the wider implication for public services. I believe therefore that it would be inappropriate to pre-empt the outcome of the Cabinet Secretary’s report by accepting the amendments on offer.

I am aware that the establishment of a border police force has been a preoccupation for the opposition parties for some time. I understand that the noble Lord, Lord Stevens, is producing a review on behalf of the Conservative Party. I am sure that he, too, would confirm that this is a complex task. So in one sense I am rather surprised and a fraction disappointed that the House has been presented with what are somewhat ill-considered amendments— indeed, amendments that are exactly the same as we have seen tabled at each stage of the Bill. We as a Government have moved on with our thinking and we would invite others to do the same.

Let me stress that the problems with the amendments are not just legal niceties capable of being put right by parliamentary draftsmen; they go much deeper than that. It would seem that after a couple of years of thought, some significant gaps remain in the analysis we are being invited to consider with regard to powers, composition, accountability, direction and leadership in the model on offer in these amendments. The noble Baroness, Lady Carnegy of Lour, is often wise in your Lordships’ House and she was certainly wise today when she reminded us of the complexity of the issue. Other noble Lords, with their long experience of Scottish institutions, have added to that reminder.

On powers and functions of the border force proposed in the amendment, as drafted, the new force appears to have no responsibility for deportation or the operation of our offshore borders through the visa system. The amendments are silent on whether the new force will have prosecution functions. A number of the bodies from whom officers of the new body are to be drawn have prosecutorial functions. Will these remain within the existing organisations? If so, will that merely become a source of inefficiency in the new body proposed? There is nothing about how the new force would make decisions because no head or management structure is to be established. Is the new force to be a Crown body? Does it have a legal personality? Can it own property? Can it be sued? Who will decide who it can employ, the terms and conditions for its officers, what its rates of pay will be and other such matters? The amendments are silent on tax and revenue issues, and here we are seriously considering adding powers of taxation and revenue collection by secondary legislation. I would suggest that that is not an appropriate way to move forward.

While of course subsection (2) of the amendment proposed by noble Lords on the Liberal Democrat Benches includes a wide power for the Secretary of State to determine additional functions by order, I think that if we were putting this forward as a model, it would be argued from the Benches opposite that it was wholly inappropriate as a mechanism to deal with such serious issues. Further, subsection (3) would provide the Secretary of State with unlimited flexibility to add new organisations and officers to the new body in a completely untrammelled fashion. Those are sweeping powers indeed. They would allow the Secretary of State to create additional functions for a law enforcement body without the full parliamentary scrutiny that is the normal course in such significant matters. I would ask the House to consider whether providing the Secretary of State with the ability to make such wide provision by secondary legislation is either right or appropriate. I also ask how the Delegated Powers and Regulatory Reform Committee of this House would react to such a proposition.

On composition, while subsection (3) provides that the new body will be comprised of officers from existing bodies, who will constitute the membership of the UK border police force? There is no mechanism for actually appointing them, and no indication of who will do it or any notion of how the test for that would apply. The existing bodies will continue to exist with their current overlapping functions. No provision is made for the cross-designation of powers. Would officers of the new force continue to exercise their existing powers, and if so, where is the benefit in bringing them together? The amendments do not appear to increase the flexibility of the existing agencies to enable resources to be deployed when and where they are needed. They do not create additional powers for officers of the new border force. Again, without such provision, where is the benefit? What impact would the creation of the new force have on in-country policing in the wider communities in which ports are located? How would the relationships work, and information about the complete police intelligence picture be shared?

On accountability and direction, while the amendments create a new corporate body, there is no accountable Minister, no accountability to Parliament and no ministerial direction of the new force’s priorities. Is the suggestion that responsibility for the UK’s borders requires no ministerial oversight and no reports to Parliament? These are serious and profound questions. Each of the existing organisations has its own separate oversight arrangements. Where are the oversight arrangements for this new force? Without these, there is potential for misalignment and confusion. Who is to fund the new body? No provision is made for any kind of funding arrangement. On leadership, the amendments do not establish a head of the organisation and make no provision for funding; nor do they create planning obligations or provide for a mechanism for it to report on its progress and accomplishments.

Those noble Lords who have brought forward these amendments may answer that these many defects could be addressed in secondary legislation. I go back to the argument I made earlier: we do not consider that this would be an appropriate way to deal with these matters if they were to create a new body to perform these functions. Matters of such importance should be provided for through full parliamentary debate and consideration, and amendment provided for in the form of a discrete Bill.

I ask the House to compare this with the establishment of the Serious Organised Crime Agency. That required some 59 sections and two schedules in an Act which dealt with establishing the body, its functions and powers, the powers of individual officers, annual plans and reports. It provided for a description of the relationship with the Secretary of State for the Home Department and other bodies; it provided for inspection and oversight, for financial provision, for operational matters, for the use and disclosure of information and a range of other relevant operational matters. This is testimony to the complexities involved in bringing separate and already established agencies together for a particular purpose in a new organisation.

My Lords, would the noble Lord apply what he is saying about the creation of new organisations to what happened when NOMS came into existence? Can he tell the House how many clauses were needed to bring NOMS into existence in the first place?

My Lords, I do not have that information at my fingertips but I will be happy on another occasion to detail the way in which NOMS was established.

The point I am making is a very serious one. If we are to create a new force of this nature, then clearly it will be complex, clearly it will require detailed legislation and, more appropriately, it will need a very full consideration. It should be based on a well thought through and constructed review—which, of course, my argument suggests is being conducted and which we should await. The Prime Minister has made a very clear commitment in this area and it would be wrong to pre-empt the Cabinet Secretary’s review.

I am, as ever, grateful to the noble Baroness and other noble Lords for raising the issue, but they will have to accept that there are some flaws in their approach; indeed, flaws of such gravity that the amendments risk running the accusation of being somewhat of an insult to the issue and of undermining the general direction in which we have been progressing for some time. The effect of the amendments would be to create an organisation without a head, an organisation without new powers, an organisation which is accountable to no one and an organisation which does not have a proper money order attached to it. Constructive consideration has to be given to those issues and, for those reasons, I would argue that the amendments are not fit for purpose—although, of course, I fully accept that they are brought forward in the spirit, which is shared across your Lordships’ House, of where we see potential for development.

My Lords, if this review is of such importance and will bring forward good ideas as to what should happen on the borders, why are we holding this discussion today? Should we not have held over our Report stage until we had this information?

My Lords, the noble Duke asks a very good question. I assume we are having this discussion today because this is seen by the party opposite as being a political priority. Of course, it is quite right to prioritise these issues; we have been doing exactly that as a Government for some time. We should of course give further consideration to the report when it is produced; I am arguing precisely that. That is why I do not believe it is right for us to accept an amendment of such a wide-sweeping enabling nature as the one we have before us today. While we have made progress in that direction, we should await the outcome of the review.

Then we will have to consider what kind of legislation we need to bring forward—because it will certainly require complex legislation. As I have described, in setting up SOCA we had to introduce a Bill with 59 clauses and two schedules. If we do not have legislation that has been properly and appropriately considered by the House, then the force that noble Lords opposite are seeking will not have been given thorough consideration.

Noble Lords raised a number of other issues, and I will try to deal with some of them. I do not have in front of me the precise words that I used in Grand Committee, but I do not believe that I suggested that immigration officers were devolved in the way in which they operate. That was certainly not my intention. Are immigration officers devolved? No. It is in the conferral of functions that police officers engage in a devolution issue, in the sense that they will act in Scotland to support the Immigration Service. As I have said, immigration is a reserved matter.

There was a question about enforcement and assault. The offence of assault will apply nationally, by virtue of Clause 22. The powers of arrest in the Bill will also apply nationally. The question of the British border management programme was also raised by implication. ACPO Scotland is fully engaging with the programme with regard to delivering the powers relating to non-immigration matters, and discussions continue on those sorts of issues.

The noble Lord, Lord Forsyth, and the noble Baroness, Lady Carnegy, raised other issues with regard to the Scottish Executive, and I understand entirely why they might want to do so. We as a Government have to work constructively with our colleagues in the Scottish Executive. To that end, the Executive have confirmed that they will further consider the matters raised by noble Lords today. We have had no commitment as yet from the Executive to legislate on this area; they are considering whether they need to. Border controls are not devolved, but crime is a devolved matter.

My Lords, the Minister will recall the discussion that we had in Grand Committee on an amendment tabled by the noble Duke, the Duke of Montrose, concerning the lack of powers in Clauses 1 to 4 for immigration officers north of the Border. The issue was not that the functions were devolved, but simply that immigration officers, particularly those operating in remote areas of Scotland such as Shetland, did not have these powers conferred on them and would therefore always have to wait for a police officer to arrive when it was necessary to arrest someone.

While that may not have mattered very much in the past, there was a particular case—which I think the noble Duke raised—of a person who arrived by cruise liner in Shetland, where there was one immigration officer to deal with several thousand individuals on the ship. This passenger slipped past the Immigration Service and committed a serious crime in Aberdeen, which was highlighted in the Scottish press at the time. So the question was: have the Government had further discussions with the Scottish Executive on whether these powers should be extended to Scotland or on whether they will be capable of dealing with the changed situation in some of the ports in Scotland where a large number of people are presenting themselves to a small coterie of immigration officers who do not have the backing of the police on the spot? I hope that I have interpreted what the noble Duke said with sufficient accuracy.

My Lords, I know that we are on Report, but these detailed points illustrate to the Minister that Clauses 1 to 4 are rather an important matter in Scotland. There is also the fact that one noble Lord, who regularly takes a firearm for sporting purposes to Glasgow Airport, says that he has to wait for 20 to 25 minutes for a policeman to be found to identify his gun. It is not much good waiting that long if you think a terrorist just got off an aeroplane and no policeman can be found. The immigration officer could not stop and search or arrest that person for up to three hours, although he could do if Clauses 1 to 4 were implemented. This is an important matter in Scotland, but that does not seem to have been recognised by the Scottish Executive. The Minister should proceed with speed to ensure that Clauses 1 to 4 apply to Scotland, either in this Bill or by the Scottish Executive themselves legislating, as he has just suggested they might.

My Lords, I express my gratitude to the noble Lord, Lord Avebury, for reminding us of the detail of the discussion that we had at an earlier stage. He is quite right to do that. I understand and appreciate the issues that he raised, echoed by the noble Baroness, Lady Carnegy of Lour. She is precisely right: that is why I made the point about the Scottish Executive confirming that they are giving the matter further consideration.

The issue raised by the noble Lord, Lord Avebury, about a particular individual was clearly an operational one. I raised it with officials, who told me that they were generally satisfied with the working relationships between the Immigration Service and the police service and the support given by the police in those sorts of instances. On the cruise ships visiting the islands around Scotland, I understand that work on checking those on the manifest is generally undertaken at an earlier stage and that most of the issues that would potentially arise are resolved far earlier. This particular incident was of special concern, and the authorities are well aware of that. We continue to work with the Scottish Executive to resolve these issues. This is clearly an important matter, of which we are apprised. I am confident that we can secure the necessary co-operation in the future, as we have in the past, and that the arrangements should work well.

I said something a while ago that I ought perhaps to correct for the record, relating to my observations on the Immigration Service and how it acts being a reserved matter. I should have said that the conferral of functions on immigration officers to detain a person pending the arrival of the police is devolved. That clarifies that issue. Of course, immigration officers in Scotland have full powers to deal with immigration and immigration offenders, so there should be no confusion on that issue.

My Lords, I am grateful for the Minister’s comment that he may inadvertently have made a slip. In Grand Committee, he said that,

“the view has been taken that the activity of immigration officers is also a devolved matter”.—[Official Report, 25/7/07; col. GC 203.]

I can see that that was a slip and how the Minister meant it in context. I am grateful to him for making the position clear; that caused my earlier intervention.

My Lords, the slip was indeed inadvertent. I was making a point in the context of a rather broader decision. I apologise to the House for that; I wanted to set the record straight.

If the noble Lord, Lord Hylton, will allow me to absorb the details that he has provided to the House, I will write to him on the specifics. That would be the fairest way to deal with that.

This has been a constructive debate; I have certainly tried to join the debate in a constructive way. We are making progress. I am just not sure that, in the end, we are motivated by the same spirit. I hope that, for the specific, technical and detailed reasons that I have outlined to your Lordships’ House, the noble Baroness and the noble Lords on the Liberal Democrat Benches will feel able to withdraw their amendments this afternoon. I certainly see this as a work in progress.

My Lords, I thank the Minister and the noble Lord, Lord Avebury, for welcoming me to my new brief. I can see that the Bill will test me at these late stages. I am glad that we have provided another opportunity for discussion of devolved matters. The noble Duke, the Duke of Montrose, the noble Lord, Lord Forsyth, and the noble Baroness, Lady Carnegy, had an opportunity to open discussion on the fact that matters as important to the United Kingdom as immigration have been left, as I understood it from questions and responses, hanging in the air. I hope that those matters will be less in the air before the Bill completes its passage as a result of discussions that will take place.

The Minister was stinging about the amendment. He was stinging not about the proposal, but about how it was being put forward. Everybody is probably beginning to wonder whether rather more is required for patrolling our borders than an immigration officer with the powers to summon a constable. If the Cabinet Secretary is undertaking a review, why are we proceeding along the route set out by the Bill when it is clear that another Bill is waiting in the wings to roar along behind when the Cabinet Secretary has discussed the matter and made his views known? It seems strange to be proceeding in two stages. We will welcome the Cabinet Secretary’s review and look forward to seeing what it contains, but we have laid down a marker during the two previous stages of the Bill and said that we do not believe that an immigration officer alone, with the power to call in a constable, is sufficient to deal with all the issues that we see as being problems.

I accept that there are deficiencies in the amendment. I am afraid that we are not in the position to summon up 59 clauses and 49 schedules to deal with the matter and to delineate exactly how a border police force would work, but we are laying down a marker and saying that something like that will be necessary rather than the provisions in the Bill.

I accept that the amendment is not entirely what is required. It sounds as though we will have much more discussion on the way in which the borders are patrolled and the powers and responsibilities of a border force. We will come back to the matter at some stage, but not today. I shall therefore withdraw my amendment in due course.

My Lords, the Minister was a little ungracious. He cannot expect Members of the Opposition to draft amendments that extend to 79 clauses and eight schedules; we would not be thanked by your Lordships if we were to proceed in such a way. The normal method is for the principle to be established and then, if that is agreed, for the Government to go away and draft something that meets the agreed intentions of the House; it is not for proposals to be developed fully by those of us who do not have the resources of a whole department on which to call.

I had hoped that the Minister would respond to my intervention on NOMS. When NOMS was introduced, no legislation was in place; it was simply announced. A new entity which was supposed to cover end-to-end management of persons sentenced by the courts was being created, but it was not until long afterwards that we knew what NOMS was, how it would work, or the Government’s intentions for its management. So if that was what NOMS was meant to be—and I am not sure that one could say that about it—we are following a good precedent.

We also endorse the approach taken by the Government. We look forward with great keenness to the report mentioned by the Minister and think that it proceeds to some extent down the lines that both the Conservatives and we advanced at Second Reading and this afternoon. There is better integration and more co-operation between the agencies involved in controlling entry and residence in our country and, to that extent, we are of the same mind as the Government. So it is right that at this stage I should beg leave to withdraw the amendment.

Amendment No. 1A, as an amendment to Amendment No. 1, by leave, withdrawn.

My Lords, I beg leave to withdraw the amendment.

Amendment No. 1, by leave, withdrawn.

Clause 2 [Detention]:

2: Clause 2, page 2, line 22, at end insert—

“(7) Section 145(1) of the Immigration and Asylum Act 1999 (c. 33) (codes of practice) applies to an immigration officer exercising any power under this section.”

The noble Lord said: My Lords, in Grand Committee I drew attention to the concerns of the Joint Committee on Human Rights about the powers of immigration officers to detain, search and seize as proposed in the Bill. In its report of 21 May, the Joint Committee noted that the Government’s explicit purpose was to confer new powers on immigration officers that will be exercisable in connection with criminal—other than immigration—offences. This, the Joint Committee believed, would make their role in support of the police a general policing function, which should therefore appropriately be regulated by the codes of practice under the Police and Criminal Evidence Act 1984. Indeed, that was important in terms of rights established under the European convention. The Joint Committee was not convinced that the standard operating procedures to be introduced would be a sufficient substitute. The Joint Committee also emphasised the need for careful training of immigration officers.

It has now been possible to study the draft designation principles and the draft standard operating procedures, which have been made available since the Grand Committee proceedings. They do not appear to remove the cause of concern. The safeguards are not as strong as those in the PACE codes and will not, it seems, be properly scrutinised by Parliament. There is, therefore, a need to insist on the applicability of the PACE codes, amended if need be, to make them suitable for these powers. Any power to detain someone for up to three hours, to search their person and to use reasonable force in doing so, with accompanying criminal penalties for not co-operating, are tantamount to police powers and they should not be subject to inferior safeguards against improper use. The principle of proper parliamentary scrutiny of the adequacy of the safeguards is therefore vital.

With the leave of the House, I shall put some specific points on the drafts to my noble friend, as it is the first parliamentary opportunity to do so, in the hope that he will convincingly deal with the issues that they raise. First, on designation, I gather that detailed criteria for designation of immigration officers are still under consideration and will be “significantly more detailed”. What parliamentary scrutiny will they receive? If such designations are to be made by a,

“senior manager of at least Assistant Director level”,

on behalf of the Secretary of State, is that really senior enough in view of the responsibilities? Why is no mention made of human rights or any other relevant legal standards in the training part of the designation principles? Why are no provisions made for training to cover the dangers of unlawful racial profiling? If the designations are to be maintained by a “central unit”, exactly who will comprise this unit and at what level of seniority?

On the standard operating procedures, the draft is still very general. The detail is apparently to be developed in collaboration with police and other relevant stakeholders, but, again, what are to be the arrangements for scrutiny? Surely scrutiny will have to cover the operational guidance to underpin standard operating procedures and the use-of-force policy. While the draft SOPs make fairly detailed provision for the information to be given to a detainee when the powers to detain or search are used—for example, all the necessary records of any such action to be kept, and the information to be given on how to make a complaint—they still do not measure up to the PACE codes. For example, they do not measure up to Code G, which explains that the power interferes with the right to liberty and that accordingly it should be used only when the necessary objectives cannot be met by other, less intrusive means. By comparison with Code G of the PACE codes, with its detailed guidance on the necessity criteria for arrest, there is no guidance in the SOPs, as far as I can detect, on the criteria to be applied by an immigration officer to decide whether an individual may be liable to arrest by a constable. There is also no equivalent to the stipulation in the PACE codes that the code must be readily available at all police stations for consultation by police officers, other staff, detainees and members of the public. The draft SOPs do not have the same firm, clear guidance as that in Code A of the PACE codes that reasonable force may be used only as a last resort and that co-operation should still be sought, even when the person initially resists search.

The draft SOPs provide that searches should be conducted out of public view, except when the search is confined to a superficial examination of outer garments alone. Presumably, that envisages that, out of view, more intimate or strip searches could take place. In an annexe to PACE Code C, there is separate detailed guidance on such searches, but there is no guidance in the draft SOPs. To guard against any apparently disproportionate use of powers against particular sections of the community, there is no equivalent in the draft SOPs to code A of the PACE codes that stop and search powers should be carefully monitored for evidence of their being used on the basis of inappropriate stereotypes or generalisations.

We must never lose sight of our primary objective, which is to protect life, liberty and justice and to preserve freedom. This needs rigorous standards. I do not believe that the SOPs as presently envisaged will provide such standards, and I am certain that the devil will prove to be in the detail. That is why scrutiny is so important. I hope that on reflection my noble friend can agree to take this clause away and seek to persuade his colleagues to agree to the amendment. What we need is for the regulation thought to be appropriate to the police to be applied to this new, de facto policing body—and, if I may say so, all the more so to any combined border force as envisaged by the Prime Minister. This is highly relevant to the ongoing strategic battle for hearts and minds. I beg to move.

My Lords, this is the same as the amendment debated in Grand Committee, when it was grouped with an amendment that we tabled on applying PACE to designated immigration officers. We have not retabled that amendment now because we were reasonably satisfied with the Minister’s explanation of how these powers were to be used and with the draft standard operating procedures for designated immigration officers for the BIA that were placed in the Library, which the noble Lord analysed in some detail. However, as he said, the draft indicated that the procedures were to be developed to a greater level of detail in collaboration with the police and other stakeholders. Like him, I was unsuccessful in searching for the final version on the web. If it has not been published, as the noble Lord implied, I should be grateful if the Minister, when he replies, would say when we can expect it. It is unfortunate that we do not have an opportunity to scrutinise it when deciding these matters, and this is probably the last opportunity that we shall get. I have to say in passing that the BIA website is not well designed. I very much hope that if he has not already used it, the Minister will spend a few minutes looking at it and, if he agrees with me, will ask officials whether work is in hand to improve it. Web design for ease of use is particularly crucial when the information being presented is of such great importance to the future prospects of hundreds of thousands of people.

The designated officer who detains a person has to issue a written notice explaining the reasons for the detention, using an interpreter where necessary to explain the notice. He must seek the voluntary co-operation of the person being detained, and if reasonable force has to be used, must complete the “use of force” log and get it countersigned by the chief immigration officer. He must give particular consideration to the needs of children, vulnerable adults, pregnant women, and others where there is evidence of physical or mental ill health. The draft says that detention of children should occur only in the most exceptional and rare circumstances, which were to be defined in further consultation with the police. It would be helpful if the Minister could tell us what progress has been made on that issue and when the final version will be published. Can we have an assurance that these documents will be available on the BIA website, and although they are not subject to parliamentary scrutiny, will the Government ensure that after a suitable period of operation, they will provide a formal opportunity for the Refugee Children’s Consortium and others to make suggestions for improvements and amendments? One advantage of using non-statutory operating procedures could be the greater flexibility to accommodate outside advice, given the willingness to do so which is not invariably to be found in the Home Office and its agencies.

In his letter of 5 July after the first day in Grand Committee, the Minister said that there were regular monthly opportunities for discussion of operational practices regarding children among designated officers with the minors' team, headed by an immigration inspector, at each port of entry, and there is also a border control and young persons working group which feeds issues back to the port and to the BIA's children's task force. These procedures sound thorough, but they are not transparent. How can children's NGOs, or the Children's Commissioner for that matter, be satisfied that, subject to the need to enforce immigration control, the best interests of the child are always observed in these procedures?

One point that the Minister did not pick up in that letter was whether the remit of the chief inspector of the BIA would cover the use of the new detention powers, no doubt because the matter was still under review as he mentioned in Committee. Why should there be any reservation on the chief inspector's power to examine the operations of the BIA, any more than there is with other chief inspectors such as those for prisons or probation? Has the Minister any further news on the matter this afternoon, and if it has not yet been decided, can he explain the reasons why these powers might be singled out from all the rest of the BIA's functions as closed to scrutiny by the chief inspector?

My Lords, some may think that the noble Lord, Lord Judd, went into too much detail on this matter. However, it seems to me that it is of very great importance that the Government should get behind them the support of as many people as possible who think about these things because the problem arises when something goes wrong when a mistake is made. The police have rightly had great problems as a result of making a mistake when they shot somebody dead in the Underground. If a designated immigration officer stops, searches and arrests somebody who turns out to be completely innocent and the matter becomes public and an issue, the whole process will be brought into disrepute. It is bound to happen sometimes. It is very important that the details of the procedures are right so that they can be defended when mistakes are made. That is an important point. It is all right when they have hit on the right person; everybody is probably very pleased that they have been caught and the police can take over, but if a mistake is made, there will be great trouble. Therefore, the noble Lord, Lord Judd, is right to make these points although I hope that he will not divide on the matter because I do not think that it is a dividing issue.

My Lords, I support the amendment. I, too, am a member of the Joint Committee on Human Rights. I am very grateful to the noble Lord, Lord Judd, for spelling out in detail why this issue is important. These are very wide powers of arrest if they include—as they seem to—the power to strip search people. There is tremendous scope for individual judgment. We have already heard that interpreters may be used. Therefore, we are talking about situations where people do not immediately understand each other. There is a possibility of racial profiling. Why would it be such a bad idea for the standard operating procedures to reach the standard of the PACE codes? Why would it be a bad thing if Code G of the PACE codes was in place, explaining that the power to detain interferes with the right to liberty and should be used only when the necessary objectives cannot be met by other less intrusive means? I agree very much with the noble Baroness, Lady Carnegy of Lour. It seems to me that immigration officers are protected as well if they work within a clear framework such as the PACE codes, which have stood the test of time, and where there can be no misunderstanding about what is acceptable practice when people are detained and subjected to invasive procedures such as strip searching.

My Lords, if I understand correctly what was said by the noble Lords, Lord Judd and Lord Avebury, this is another occurrence in a very short time of a major piece of germane work not being before us as we work on the Bill. As it is the second time that this appears to have happened in an hour and a half of debate this afternoon, it seems extraordinary that we are in a sense shadow boxing without the information being before us.

That said, I draw attention to the fact that some of the things that have been noted will come up later in our discussion. I refer to the amendment of the noble Lord, Lord Hylton, on vulnerable adults and the questions immediately before us about children, which underline the importance of the points being made on this amendment.

In Grand Committee some very important questions were asked about training, the continuing education of the people involved and conditions of custody. Probably most of us in the House at the moment have listened to those most affected by this issue. We have very difficult stories to tell—that may be the reason we are involved with this Bill—about conditions of custody, even for short periods and about the way that people are treated, translation facilities and so on. How can the Cabinet Secretary’s work, and the work to which the noble Lord, Lord Judd, and others referred, be incorporated in the Bill so that we do not find ourselves, as the noble Baroness said, dealing very soon with another Bill to amend this one?

My Lords, I have a drafting point on Clause 2. On page 1, line 14, there is the word “thinks”. I can be quite brief, as we have had this many times before, in this Bill and in other legislation. “Thinks” is too vague. It would be much better to have “is satisfied”, particularly in view of the serious consequences that can flow from an immigration officer using these powers.

My Lords, I have not been involved with this Bill so far, because I have had other commitments. I wonder whether the Minister would explain precisely what is meant by “designated immigration officer”. I remember discussions some while ago on previous immigration legislation, when I had concerns because there was provision in that Bill for the Secretary of State to contract out part of the Immigration Service. That meant that the work could be contracted out to people who had not had the professional training that was required for people doing this work as public servants. I would like to know what designation involves. Does that mean that the people concerned would have the specialist training that surely would be required if they are going to be able to use reasonable force and where they have quite wide powers? Will my noble friend tell us exactly what that means?

My Lords, this is the UK Borders Bill, and therefore it does not just relate to Great Britain but to the whole of the United Kingdom. Will there be any immigration officers on the land boundary between the United Kingdom and the Republic of Ireland? If not, will the Republic of Ireland apply the same entry requirements as immigration officers will require when people enter Great Britain? If not, people will enter the Republic of Ireland—as they now do—and move freely across the land border into the United Kingdom. Therefore, the impact of this Bill will be null and void.

My Lords, as ever, I congratulate your Lordships’ House on dreaming up many questions relating to an amendment; and very helpfully so, because clearly noble Lords have pondered these issues. I am grateful to noble Lords, in particular to the noble Baronesses, Lady Stern and Lady Carnegy of Lour, for their very thoughtful contributions.

This Government have listened very carefully during the Bill’s passage to the points that were put forward calling for the provisions of the PACE framework to apply in respect of the detention at ports provision. We had some useful discussions in Grand Committee, and I engaged in some detailed correspondence with noble Lords trying to set out for them how these matters were to work. I thought that we had covered most, if not nearly all, of the points that were raised. I apologise if that is not the case. I thought that we had satisfied most noble Lords on these issues. I am grateful to my noble friend Lord Judd for bringing back his amendment because it allows me a few moments to set out some issues and concerns and answer some additional points.

The Government are not in vast disagreement with the spirit or principle that lies behind the amendment. For that reason, we felt able to set out at an earlier stage some detailed consideration of those issues. We entirely understand that there needs to be a mechanism in place to oversee the use of these powers by designated immigration officers—that is officers who are designated to deal with these issues, to answer the point made by my noble friend Lady Turner—but we maintain the view that this mechanism can sufficiently, and most appropriately, be provided in the form of clear and specific standard operating procedures, or SOPs.

The noble Lord, Lord Judd, reminded the House that we are conducting reviews in this area. I take the point made by the right reverend Prelate that we are considering an issue that has some bearing on these reviews, but that is often a fact of life when dealing with legislation. Things move on during the passage of a Bill, and other issues come into play, and there may need to be some further consideration at a later stage. It is an iterative process, which is not unknown to many of us in dealing with legislation. Those two key reviews that the Government are conducting will, as the noble Lord, Lord Judd, rightly said, have an impact on this to a greater or lesser degree.

On 25 July, my right honourable friend the Prime Minister made a Statement in the other place primarily focusing on security issues. He announced a review that would consider how the vital work of the Border and Immigration Agency, Customs and UK Visas, overseas and at the main points of entry to the UK, in due course may become a unified border force. In instigating that review, a view has to be taken on some of these other issues. A small border review team, led by the Cabinet Office and composed of people from the departments and agencies involved, is now progressing that work. The team’s conclusions will have an impact on the fundamental shape and nature of frontier control and on the way in which the border agencies will exercise their functions.

The second key review is of the Police and Criminal Evidence Act 1984—the PACE provisions—which was launched on 16 March. That was an open, extensive process, inviting comments on the need for revision of the 1984 Act and the PACE codes. A summary of responses was published by the Home Office Policing Powers and Protection Unit in July. In general terms, there was,

“an admiration for the framework that PACE provides and for its pivotal status setting out the rules and procedures that must be followed in the investigation and prosecution of crime”.

I pay tribute to the noble Baroness, Lady Carnegy of Lour, for her telling observation that processes are important and getting the procedures right in detail is absolutely key. I completely share that view, and that is why we are approaching this matter with some considerable care. Responses clearly favoured the codes of practice being produced in,

“a format and style which improved their accessibility, their use and their applicability to the user”.

The next phase of the consultation programme will consist of a series of regional seminars with stakeholders and practitioners and a programme of bilateral meetings with key stakeholders. The contents will be subject to a final phase of consultation in spring 2008 to consider the final proposals for legislative and administrative change.

The outcome of those reviews may have significant implications both for front-line functionality and for the format and style of the PACE codes. It is important, therefore, that we await the outcome of those reviews before considering any fundamental change in our position on the application of the PACE codes of practice to the detention at ports powers. For that fundamental reason, I invite noble Lords to consider withdrawing the amendment. That does not in any way, shape or form undermine the importance of the issues that the noble Lord, Lord Judd, has raised, and I fully acknowledge their importance.

Oversight arrangements will of course be similar to those currently in place as regards similar powers of detention for immigration purposes. The process is designed to ensure that we have clear policy guidance and clear operational instructions; that administrative arrangements for authorisations and review by senior officers—chief immigration officers and immigration inspectors—are in place; that there are effective departmental audit and compliance arrangements; and that there is oversight of decision-making by the independent Race Monitor, who makes an annual report to the Home Secretary. I make that observation in the context of the concerns expressed by my noble friend Lord Judd about issues such as racial profiling, because I recognised the significance and importance of those concerns. What we have set out will satisfy many of those concerns, and the detail is very important, because without that detail and ensuring that the procedures are properly described, there is scope for confusion.

I shall answer some of the more specific points. My noble friend Lord Judd asked whether there was provision in the standard operating procedures for intimate searches. Perhaps it is worth saying that there is no power under Clauses 1 to 4 to undertake intimate searches; so in a sense, as envisaged by PACE, there is no specific meaning to the notion of intimate searches in the way that my noble friend envisaged that they might be applied. A question arose as to when the final version of procedures might be available. It will not be available until we can take account of the Home Office review and the wider consideration of PACE codes.

The noble Lord, Lord Avebury, raised concerns additional to those he expressed earlier on this matter. Of course there is consultation with the Association of Police Officers and we have begun that process. We do not expect it to conclude until we understand and know the outcome of the other reviews. I give an undertaking that we will consult with relevant stakeholders, including those who are most concerned about the welfare of children, because that is right and we need to ensure that the consultation is properly detailed and that we will reflect on the issues.

I hope that I dealt with the point raised by my noble friend Lady Turner. The noble Lord, Lord Hylton, raised a drafting point—what does “thinks” mean? There is no difference between “thinks” and “is satisfied that”. The use of “thinks” reflects current legislative practice.

All I can say on the question raised by the noble Lord, Lord Kilclooney, is that nothing in the Bill changes the nature of our relationship with those in the common travel area, which, of course, includes the Republic of Ireland. I take the noble Lord’s general point that we must have effective border control and management—that has informed all of our debates on the Bill.

I hope that, in time, we can satisfy all the aspirations expressed by my noble friend Lord Judd, because I do not think that there is much distance between us. I understand the sensitivity of the issues he raised and we will continue to reflect on them throughout the consultation process and deliberate on the findings of the two important reviews that are currently in train.

My Lords, I thank everyone who has contributed to this important discussion. I am sure that I am not alone in thanking the Minister for the thoroughness and conscientiousness with which he always tries to take up every point made in the debate. He is a model performer in that respect. The trouble is that he does not always convince us or answer the points raised, while one cannot fault him for recognising that they have been made.

I am uneasy about the situation and again I wish to explain why. We are going to introduce legislation that will put immigration officers in the front line of carrying out the policy that we are making. It is terribly important in that work, which can become emotional and fraught, that there are absolutely specific and clear guidelines regarding what is permissible, what is not permissible and why that is the case. That is something that strikes me about the PACE codes—they explain why particular restrictions on activity are necessary.

I heard my noble friend say that there will be a review covering all of these matters and everything else, but the Bill will become operative before that happens. I am sure that the right way to have proceeded would have been to say, “We are going to have a review and if something more appropriate and special is necessary for this operation, we can look at that after the review”. But meanwhile, because the front line of border controls will have powers, I stress, not just in connection with immigration offences, but criminal offences, it is amazing that we do not say that, therefore, as this is a police function, the code of conduct appropriate for the police will apply to those operating in this way.

My two more philosophical points are also acutely important in terms of the realities. First, we must not become slipshod in our commitment to the highest standards in the defence of liberty. We simply must not let them be eroded by the back door. Secondly, reference is constantly made—including by the Prime Minister and by other Ministers—to their commitment to winning the battle of hearts and minds in all the challenges and tensions that confront us. The noble Baroness was right to say that it is when things go wrong that we discover that we have not been adequate, and that if we have a chance to be adequate at the time of the legislation, that is the time to do it. It is in these kinds of areas that ill will builds up, and that turns into alienation from the direct experience of the people going through the process and plays into the hands of the extremists who are out to recruit people for extremist action.

That is why it is vital that we have the highest standards and that we support those who we ask to carry out duties on our behalf by making sure that what is required of them is explicit, clear and not one thing in one organisation and another in another organisation. I shall go away and think hard about what my noble friend said, because I respect him. I cannot say that I am going away thinking, “Well, that issue is solved”. I do not think that it has been; but at this stage, it is probably appropriate that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3: After Clause 2, insert the following new Clause—

“Detention by Secretary of State

(1) Section 62 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (detention by Secretary of State) is amended as follows.

(2) In subsection (1) insert the words “over the age of eighteen” after the word “person” in the first line.

(3) After subsection (3) insert—

“(3A) A provision of Schedule 2 to that Act about a person who is detained or liable to detention under that Schedule shall only apply to a person over the age of eighteen.”.”

The noble Lord said: My Lords, I shall speak also to Amendment No. 4. It is probably a good idea to draw to the attention of the House that what I say will also cover the rationale for Amendment No. 16, which is in a later group for our deliberations. Perhaps that will mean that I do not have to say so much on Amendment No. 16 when we reach it.

The purpose of these amendments is to end the detention of children below the age of 18 under the Nationality, Immigration and Asylum Act powers. Such detention should not happen and it is certainly not in furtherance of the Prime Minister’s powerful biblical reference to an inclusive policy for children in his recent speech to the Labour Party conference. It is contrary to our international commitments and should stop.

I recognise that the amendment standing in the name of the noble Baroness, Lady Hanham, is designed to deal with the same issue. I assure the noble Baroness that I shall listen most attentively and carefully to what she says. I also assure the Minister that I shall listen equally carefully to what he says in reply to that amendment, and he can draw his own deductions about how I therefore intend to proceed.

At present, children are detained under the same policy as adults. There is no consideration of the fact that they are vulnerable when a decision is taken to detain. Government guidance on detention states that, in all cases, detention must be used sparingly and for the shortest period necessary. Despite that, recent Home Office statistics show that a large number of children are being detained with their families each year. Asylum statistics show that during 2006 1,235 children were recorded as leaving detention and in 2005 the figure was 1,580.

In Grand Committee, my noble friend repeated previous government assurances that:

“In practice, the vast majority of families are detained for periods of seven days or fewer, most often just before their planned removal from the UK”.

He argued that the Government want,

“to ensure that children are detained only where absolutely necessary”.—[Official Report, 23/7/07; cols. GC 160-61.]

I have no doubt at all about my noble friend’s genuine intentions in this respect. However, the latest asylum statistics show that, in practice, this is not happening.

As at 30 June 2007, 35 children were in detention and, of this number, 10—29 per cent—had been in detention for between one and two months; 20 children—57 per cent—had been in detention for between 15 and 29 days; and only five children—14 per cent—for seven days or fewer. Recent statistics obtained under the Freedom of Information Act from Yarl’s Wood detention centre show that one-third of children remained in the centre for more than seven days and five children were held for between four and six months.

I am indebted to the Save the Children Fund for its concern and insight into these matters and also to the Refugee Children’s Consortium for its incredibly hard and committed work in this area of policy. Save the Children Fund research found that the length of time that children were detained with their families varied from seven to 268 days. I understand that a recent letter from the Border and Immigration Agency to a member of the Refugee Children’s Consortium stated that the recommendations of the family removals review,

“have now been agreed and that implementation of the … Review has a target date of 31 December 2007”.

However, the Refugee Children’s Consortium is still awaiting clarity on which of the 46 recommendations of the review will be implemented. In particular, it briefed me that it is anxious to have an assurance that all the recommendations relating to the welfare of children will be implemented and that key stakeholders will be consulted in the implementation of those recommendations.

Obviously, it is to be welcomed that in Grand Committee my noble friend argued that the key benefit of the pilot to be run as an alternative to detention is that it will,

“reduce the number of children needing to go into an immigration removal centre”.—[Official Report, 23/7/07; col. GC 161.]

It is now necessary to have an assurance that the pilot is a genuine alternative to detention and that it will seek to reduce the number of families with children who are detained, rather than create an addition to detention. It is also essential that my noble friend confirms that any evaluation of the pilot will be conducted independently and transparently and that it will involve key stakeholders.

Front-line experience, to which my attention has been drawn—as, I am sure, has that of other noble Lords—suggests that the use of detention is not in proportion to the risk of non-compliance. Refugee Children’s Consortium members have documented numerous cases of families being detained, despite complying with reporting obligations and being low risk with regard to non-compliance or absconding. Research also shows that families are detained without any imminent prospect of their removal and with outstanding issues remaining on their asylum claim.

The Government hold that children are detained for the shortest possible time. A statutory limit of seven days on the time that children can be detained would ensure that that occurs in practice. I know that in response to the amendment moved in Grand Committee my noble friend replied that any statutory limit would, in the Government’s view,

“serve to encourage individuals to frustrate lawful removal attempts in order to reach the point at which they would be released from detention”.—[Official Report, 23/7/07; col. GC 160.]

However, current operation instructions on removals and judicial review would make it difficult for an individual to frustrate removal attempts for seven days if removal directions were served at the point of detention. The minimum timescales in place between serving removal directions and removal—in order for the person to seek advice and judicial review if appropriate—is generally 72 hours, including two working days. Additionally, the instructions go on to explain that removal will not be deterred by the threat of judicial review.

It is important that an independent welfare assessment and an assessment of the likely impact of detention should be carried out for all children before they are detained. The health-led initial assessment of children on arrival at detention and the forthcoming Border and Immigration Agency code of practice, referred to by my noble friend in Grand Committee, do not replace the need for a statutory independent welfare assessment prior to and during detention. Although it is always damaging for children to be detained, an independent welfare assessment could prevent some of the worst abuses caused by the system. It is vital to have an assurance that an assessment of a child’s welfare needs will be available before and during detention and that it will be taken into account in decisions to detain and throughout the detention process.

Any welfare assessment should surely determine what is in the child’s best interests and reflect the views and wishes of the child, in line with Articles 3 and 12 of the United Nations Convention on the Rights of the Child. It should also be available in all places where families are detained, not just at Yarl’s Wood where there is a social worker in residence. There is, of course, provision for welfare assessments by a social worker at Yarl’s Wood for children detained for longer than 21 days.

However, there is much room for concern at the length of detention before an assessment. Experience indicates that families’ legal representatives, detention centre and immigration staff are all unclear about the scope and purpose of the welfare assessment. In the absence of clear instructions and protocols, there is limited scope for assessment to lead to positive outcomes for the children concerned. Introducing an independent welfare assessment would balance the drive to enforce immigration control with the needs of vulnerable children. In the absence of an end to detention of children, which must be at all times the priority, and which is long, long-overdue, statutory safeguards should be put in place to ensure that vulnerable children and their families have at least some limited protection. I beg to move.

My Lords, we are much indebted to the noble Lord, Lord Judd, for the detail with which he has supported the amendments. What I want to say depends largely on that, but I shall make a number of summary points. Those of us, of whom there will be many in this House, who have seen something of the inside of one or more detention centres will have rapidly formed the impression that these are no places for children and young people. On the whole they are simply not happy places; they are places of tension and anxiety. They are also places where rarely, if ever, are there separate facilities where young people can be assured of protection in all senses of that word. Young people and children are put in such places where there are often, if not always, inadequate educational facilities. In the light of what the noble Lord, Lord Judd, said about the length of time that children are in such places, it is clear that they are torn from their schools—if they are in school, as one hopes they will be—and torn from their friends.

Those are serious matters. As the later amendments tabled by the noble Baroness, Lady Hanham, and others bring home, such detainees are not specifically protected by the Children Act or the UN Convention on the Rights of the Child. All that would be serious enough, but then there is the experience of so many people with a great deal more knowledge at first hand than I have—and I have some. Whatever the good intentions of the Home Office and of many of those working in the system, it appears to be constantly shot through at best with a lack of imagination and, with awful frequency, serious degrees of inhumanity.

Amendment No. 4 is most important; if it were to fail, Amendment No. 5 would be most important, too. Underlying Amendment No. 4 are some of the stories that one has heard at a range of points—in Grand Committee and in another meeting in this House called by the noble Lord, Lord Avebury; it was not part of this legislative process, but took place during it. We heard then, and I have heard elsewhere, tragic stories of parents separated from young children and young children separated from parents. Those stories and realities may arise out of the conviction that such places are not for very small children, which underlies elements of Amendment No. 4. For all those reasons, these are serious matters that the noble Lord, Lord Judd, and the noble Baroness, Lady Stern, have brought to our attention.

My Lords, it may be necessary to detain families from time to time in the interests of an effective immigration system. I support the amendment because of my experience in having visited Yarl’s Wood on a couple of occasions. The last time I visited that centre, I spoke to a 16 year-old who had been detained there for five months with her eight year-old sister. A mother I spoke to said that she and her two children had been detained for two months. The Minister pointed out in a letter today something that we hear repeatedly, when he said,

“that the vast majority of families with children spend 7 days or less in detention”.

I welcome that, but clearly from the figures given by the noble Lord, Lord Judd, numbers of children stay in detention for considerable lengths of time. I was struck when speaking to the 16 year-old girl how bitterly she felt about being detained in this way. She had committed no crime. What sense of the adult world does a young person have if they are detained for five months without any conviction or without having committed a crime, even in the most civilised and sanitised of settings? I recognise the challenges faced by the Government but wholeheartedly support Amendment No. 4, which would put a definite limit on the time that children can be held in such settings.

My Lords, I agree with the noble Earl that it is impossible to say that we can avoid detaining children altogether, but I disagree that we can place on it a statutory time limit of seven days. I am sorry to have to say that because I bow to nobody in my hatred of the need to detain children in whatever circumstances, but if we are to have effective immigration control, there are relevant circumstances, such as when a family needs to be detained together to facilitate its removal. We shall come on to that when we think about alternatives, because my noble friend will move an amendment to implement the destruction of Section 9. You cannot say that we will not bring extreme pressure to bear on people to depart voluntarily if you destroy the ability to remove them compulsorily. One has to consider the two propositions at the same time, however much we loathe the idea of bringing children to a place such as Yarl’s Wood.

I agree with the right reverend Prelate, but it was not my meeting that we both attended. It was organised by a number of women’s groups to hear from people who had to put up with the conditions in Yarl’s Wood and who gave some pretty scarifying stories about them. Every one had a heartbreaking story to tell about their own experience and that of their families—their children, generally speaking. Of course, there was the extreme case that the right reverend Prelate will remember of Janipher Maseko, who was detained apart from her two children. They were separated from her at the time of her arrest and not restored until an enormous fuss was made by various women’s organisations such as Baby Milk Action, Black Women’s Rape Action Project and so on.

The awful thing was that we already had an undertaking from the Minister that women would not be separated from breast-feeding infants except in the most extreme and exceptional circumstances. Yet, after two cases had been reported to the Minister, a third happened under our noses. That was so horrendous to all of us who listened to the facts that we could not believe that a civilised agency of the Government was capable of perpetrating such an injustice. Now, thank goodness, the instruction is embodied in the operational enforcement manual that women who are breast-feeding infants will not be detained separately from their children, except under extreme and exceptional circumstances, and we hope that that will be observed. One of the problems is that these things are put into documents—guidance or instructions—and then something goes wrong, and it does not happen at the coal face. From the stories that I have heard about Yarl’s Wood—I dare say that it is exactly the same in any of the other establishments one looks at, whether Campsfield House, Harmondsworth or Tinsley House—things go wrong, so one should keep the detention of children to a minimum.

I was rather hoping that the promised guidance on how children should be treated would have a lot to say on this subject, so I was eagerly looking forward to receiving it. I got my copy at about 3.30 this afternoon—the copy that had been promised by Ministers in Committee and which we were told would reach your Lordships before we had to debate these matters on Report. I did not expect it to come to my hand at 3.14 or 3.30 in the afternoon, just before I had to come into the Chamber to discuss it.

I have had only the most cursory opportunity of looking through it, but I shall summarise my anxieties about this document. First, it does not specifically mention detention. All this afternoon’s proceedings and the debates we had in Grand Committee on detention might well have been lost on those who constructed the document. I regret that it is not more precise. Secondly, it provides that staff must only have regard to the code; it does not state that they must observe any of the provisions. Thirdly, it does not make clear whether the code applies to private or voluntary contractors who are undertaking functions on behalf of the BIA. Fourthly—I am sure that this will annoy the noble Lord, Lord Judd—it says nothing about the need for an independent welfare assessment of children’s needs, a matter that has been highlighted many times, not only in your Lordships’ House but by the Chief Inspector of Prisons and others, including, I think, the Children’s Commissioner.

This is a disappointing document but, even worse, it represents only a high-level draft that may be amended before being issued for formal consultation. It is not what we were promised at all. It is only a further stage in the process of drafting this document, which is an inadequate response to the promises that we were given in Committee.

I hope that the noble Lord, Lord Judd, will press his amendments. Even though I do not agree with the detail of them, it is a salutary exercise for the Government to be made to answer why the detention of children is not conducted in a more humane manner, what steps they are taking to minimise the time that children are kept in detention, and why it is necessary to detain them at all. I am glad to know of the measures being taken to pilot alternatives to detention, and I hope that we shall hear more about that from the Minister when he comes to reply. I am with the noble Lord, Lord Judd, in the spirit of his amendment, even though I cannot support him on the detail.

My Lords, I say “Hear, hear” to the last two sentences of the speech by the noble Lord, Lord Avebury. It will be very interesting to hear what the Government say in reply. The noble Earl, Lord Listowel, is right, and the noble Lord, Lord Avebury, echoed him: it is not, alas, possible to say that children should never be in detention and it is probably not possible to say that they should never be in detention for longer than seven days. There is the question of separating families: if the parents are not to disappear—if the father is not to disappear—the children may have to be in detention for the briefest possible period. The important thing is how they are treated when they are in detention. That is what we will come to with Amendments Nos. 5 and 16, which are extremely important.

The idea that a teenager should be detained for five months in this context is horrifying. I am glad that the noble Earl pointed that out. That is what happens with systems—they go wrong. It is the Government’s responsibility to try to prevent them going wrong. We all owe it to children to do that. However, it is not possible for me to follow the noble Lord, Lord Judd, in the Lobby.

My Lords, I am grateful to all noble Lords who took part in this debate for the thoughtful and constructive way in which they approached things. The issues that the amendment raises are important. The detention of children is a highly emotive subject and not one that the Government, or anyone else involved in this debate, approach lightly. However, it is regrettably necessary in certain circumstances to detain children, and I welcome this opportunity to set out the Government’s position on the issue.

Amendment No. 3 would prevent the detention of children in all circumstances other than where their detention was authorised under Schedule 3 to the 1971 Act in connection with deportation. There are two limited circumstances in which children may be detained under immigration powers: first, and most commonly, as part of a family group whose detention is considered necessary, usually as a prelude to their removal; and secondly, where it is necessary, wholly exceptionally, to detain a child while alternative care arrangements are made, normally just overnight. This requirement is likely to arise in situations where, for example, unaccompanied children are encountered at ports of entry or during enforcement operations and there are no responsible adults in whose care they might immediately be placed. In such cases, it is sometimes necessary to detain children very briefly, usually for a few hours or no more than overnight, until alternative arrangements for their care can be made, either with relatives or social services. Such detention is wholly in the interests of the safety of the children concerned.

In the more usual case of families with children, they may be detained in line with our published detention criteria, which are: initially, while identity and basis of claim are established; where there are reasonable grounds to believe that the family will abscond; as part of a fast-track asylum process; or to effect removal. In practice, the detention of families with children is most often used to effect their removal from the United Kingdom, and usually takes place just a few days before removal. It lasts for as short a time as possible and most families are detained for a small number of days prior to their removal. We would naturally far rather that families with no lawful basis of stay in the United Kingdom left voluntarily, but where they do not do so we must take steps to enforce their departure, which requires the support of detention. Where it is necessary to detain a family, we consider that it is generally better for children to stay with their parents. In the past, your Lordships’ House has realistically supported that view.

However, we are not complacent about the concerns surrounding the detention of children. I confess that from time to time errors are made, things go wrong and matters are not dealt with properly or appropriately. That is one reason why we have taken the significant step of seeking to place the Border and Immigration Agency’s responsibilities towards children on a statutory footing through the requirement to have regard to a code of practice to keep children safe from harm.

As was referred to by the noble Lord, Lord Avebury, a draft of the code has now been made available to noble Lords. I apologise for the late circulation of that document but it is in a process of change and amendment. As noble Lords will no doubt have seen, the code contains specific reference to the arrangements for taking decisions to detain and the provision made for families with children while detained.

I remind the House that the Government are responding positively to the calls to explore more alternatives to family detention. The agency has developed arrangements with Migrant Helpline to provide an alternative to detention for families with children, and Members of the House have broadly welcomed that.

I can give some more details. The pilot scheme, which will see families housed in a hostel in Kent, is due to begin in November and is scheduled to last for one year. If it proves successful, it will be rolled out nationally. The test will be whether families placed in the hostel take the option of leaving the UK voluntarily. There will be support staff from the voluntary sector and the International Organisation for Migration available to give advice to the families in the pilot on voluntary return packages. If successful, the key benefits of the scheme will be to reduce the number of families needing to be detained, coupled with an increase in the number of families choosing to return home voluntarily.

Where detention is necessary we constantly strive to ensure that detained children spend as little time as necessary in detention and that satisfactory arrangements to monitor their welfare are in place. At Yarl’s Wood removal centre this now includes, as one or two noble Lords have mentioned, full-time, on-site professional social work support. Detention of families with children is a regrettable but necessary element in maintaining effective immigration control and a robust but fair asylum system. This proposed new clause is incompatible with both those aims.

The noble Lord, Lord Avebury, made the point again today—he wisely made it in Grand Committee—that “to prohibit detention” of children,

“entirely would make immigration control impossible and, in the case of arrivals, in many cases it would be manifestly contrary to the interests of the child”.—[Official Report, 23/07/07; col. GC 154.]

That is the Government’s view too.

We fully understand the legitimate concerns and unease about the detention of families with children. That is why we are keen to ensure that families are detained only when necessary, that detention operations are conducted intelligently and sensitively, that families are detained for the shortest period necessary, that they are cared for appropriately while detained, and that alternatives to detention are explored. But ultimately we must retain that ability to detain.

Amendment No. 4 seeks to place a time limit of seven days on the detention of persons accompanied by dependent children, and would impose a requirement for a social services welfare assessment to be conducted before any lesser period of detention could be authorised. I have made the point many times that we have no wish to detain anyone, least of all families with children, for any longer than is necessary. But individuals and families are detained only for as long as is reasonably necessary to achieve the purpose for which detention was authorised, which is usually in the case of families about to be removed from the United Kingdom.

We are keen to ensure that detention lasts for a short period. That is particularly so for families with children. In practice, most families are detained for a small number of days, usually just before their removal. However, we have made plain on many occasions—most recently in the context of discussions surrounding the draft EU returns directive—that we cannot accept a fixed upper time limit to immigration detention, whether for families with children or for single adults. Our position on this issue has remained consistent over a number of years.

While we agree with the premise underlying this amendment that families with children should be detained for a short period, and aim to do that in practice, setting a statutory upper time limit would remove the flexibility to detain families for longer periods when necessary. A fixed time limit, which would be out of step with long-standing UK law and policy and go beyond the requirements of ECHR Article 5, would also simply encourage the families concerned to frustrate and delay matters to exploit our inability to detain beyond the seven-day point, and thus secure their release from detention and avoid removal. That is not acceptable.

The separate requirement that there should be a “satisfactory” social services welfare assessment before any period of detention is authorised is impracticable. It is not clear from the terms of the amendment who is to be assessed, although I assume it is meant to be the dependent child. The detention of families with children is usually a planned exercise which will take into account any welfare issues that might be present, but it will not always be so. Detention may be unplanned and, in such circumstances, it would not be possible to arrange a formal welfare assessment beforehand. In other cases the assessment could well increase the risk of families absconding, or of failing to comply with reporting instructions, if they believe removal to be imminent. More generally, I do not think local social services departments would thank us for imposing this added burden on them.

Children detained with their families are given a health-led initial assessment on arrival in detention, and their welfare is monitored routinely thereafter. Welfare concerns about a detained child are brought to the attention of the caseworkers managing that family’s detention, to consider whether continued detention is right. Detention is kept under rigorous and frequent review at successively higher levels within the Border and Immigration Agency and, ultimately, by Ministers in those exceptional cases of detention beyond 28 days. This ensures that any welfare concerns can be taken into account in deciding whether detention should continue.

I have made the point many times: the detention of families with children is an important element in maintaining an effective immigration control system and a robust but fair asylum system. As with Amendment No. 3, this proposed new clause would seriously hamper our ability to use detention effectively in relation to families, so would be incompatible with those aims.

I well understand the motives and the spirit of generosity in which the amendments have been spoken to but, in terms of the practical application of immigration law and—as I think the noble Lord, Lord Avebury, said—to retain a robust immigration system, we cannot accept them.

My Lords, before the Minister sits down, will he say where in the code of practice on children detention is mentioned? I read the code through before coming to the Chamber and I could not find it. My noble friend has now read most of it and he has not been able to find it. We do not think that detention is mentioned in the code of practice, except where the introduction indicates that the intention is to develop practices regarding detention. Therefore, there is nothing substantive for us to get our teeth into.

My Lords, I am grateful to the noble Lord for taking the time and trouble to go through the code. I, too, intend to give it further perusal. I cannot precisely answer his question. I do not have a copy of the code in front of me, but I take his point and I shall reflect on it.

My Lords, once more I thank all those who have participated in the debate. I have listened carefully to the strictures on some of the arguments that I put forward. Because they come from people whom I respect, I will of course weigh them carefully. However, I do not think that we agree about this. It seems to me that there is a world of difference between what we are saying—that the objective is that no child shall be detained and that detention is no place for a child, just as a prison is no place for a child. Sometimes an exception may be necessary, in which case all the emphasis is on establishing specific, special arrangements in that instance.

The moment that one concedes the principle about the detention of children, the doors open. One must be realistic about the pressures on the people operating on our behalf in the front line of our immigration policy. I have a great deal of sympathy with them. They are under terrific pressure. But that is where the firm intentions, the firm objectives and the firm principles should not be hedged around with people saying, “but of course”. It should be said quite simply that if in certain specific circumstances a child needs to be detained, special arrangements must be made and a special case established. That I would certainly sympathise with. I also think that we muddle in our thoughts the difference between care and detention. We are often talking about children who are in a great deal of need of particular care.

I feel passionately about this. We have hummed and hawed and hedged on the issue of prisons, let alone detention centres, for as long as I can remember in politics. We have never grasped the nettle. The driving force should be that prison is not a place for a child. Has anyone visited an adult detention centre? It is not a place for a child. We should ensure that this is not slipped into because pressure makes it necessary to say, “The legislators left the door ajar and the opportunity open”.

I make no apology for re-emphasising my commitment on that score. I am a little disappointed that some of those in this House whom I deeply respect do not see this point and come behind it full-heartedly. I am also a little disappointed that some children's organisations in this country are not as radical on this point as I believe that they should be.

I listened carefully to what my noble friend said. I said at the outset when introducing my amendments that I was very interested by the amendment standing in the name of the noble Baroness, Lady Hanham. As I said, I will listen to her argument with great attention; I will also listen to the Minister’s reply. In the mean time, I fear that I have to show my weakness—I am a political realist—so, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

5: After Clause 3, insert the following new Clause—


(1) The Border and Immigration Agency must take appropriate steps to ensure that—

(a) their functions in the United Kingdom are discharged having regard to the need to safeguard and promote the welfare of children; and(b) any services provided by another person pursuant to arrangements made by the Border and Immigration Agency in the discharge of their functions are provided having regard to that need.(2) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.

(3) In this section—

(a) ‘the Border and Immigration Agency’ means—(i) immigration officers, and (ii) other officials of the Secretary of State, and the Secretary of State, in respect of functions relating to immigration, asylum or nationality, and(b) ‘child’ means an individual who is less than 18 years old.”

The noble Baroness said: My Lords, I listened with great interest to the noble Lord, Lord Judd, speaking to his amendment; I hope that he will listen as avidly to me and that I live up to his expectations. This is an extremely important area.

My amendment is a multiplication of the two amendments on the matter moved by my noble friend Lady Anelay in Committee. They were drafted by the Refugee Children’s Consortium to address some of the concerns raised by your Lordships in Committee about applying Section 11 directly to these government services. Although we on these Benches are glad that the Government have made some steps towards our position by introducing Clause 21, we do not feel that a code of practice alone, however strongly it is worded—we are not sure that it is strongly worded—provides the level of protection for children that the amendment would.

Like other noble Lords, I received the code of practice while in the Chamber and consequently have not had as much time as I should have liked to look at it, but I understand that the Government have promised that the code of practice is being toughened up. I hope that when we look through it we will find that that toughening is there.

The Government have an extraordinary aversion to placing commitments in primary legislation. Their usual excuse is the perennial cry of flexibility, but in this situation that will not wash. A flexible attitude to the welfare of children is not one that I—or, as I hope and understand, any Member on the opposition Benches—would support. I therefore cannot see why the Government feel unable to confirm their stated intention to protect children in the immigration system to the extent that the amendment would ensure. By putting the safeguards in the Bill, we can ensure that no future Government could fall below the standards that we are aiming for, whether because of a change in priorities, budget restrictions or any other reasons.

The amendment contains two requirements that the Government have previously objected to. We and the Refugee Children’s Consortium feel that those objections are not justified and we hope to persuade the Government of the feasibility of including both a promotion of children’s welfare and a commitment to applying these standards to contracted-out organisations.

First, there is the promotion of child welfare. The Children Act 1989 provides the statutory framework for how children of the United Kingdom are to be safeguarded and their welfare promoted. The framework for the assessment of children in need and their families sets out the definition of what promoting welfare involves, so clarity about what the obligation involves cannot be an issue. However, the Government have objected to that requirement on the grounds that that definition involves providing opportunities to optimise life changes. Their stated concerns ignore the established fact that agencies need do that only,

“in the discharge of their functions”.

It is not an absolute duty. It is therefore clear that the requirement would not prevent the Home Department from implementing a removal direction for a child and his or her family. It would, at most, affect the manner in which the Home Department did that. In addition, the amendment limits the duty of the Home Department to children within the United Kingdom. Clearly, once they have been deported, there is no obligation to promote their welfare, as that would be completely impractical.

Secondly, the amendment would extend the requirements to cover organisations to which services had been specifically contracted out. The Government’s drive to improve standards by privatising many government functions has our support. It can indeed be a way to increase efficiency and effectiveness and to tap into the enormous expertise of voluntary and business sectors. However, such a drive can succeed only with suitable safeguards. Enormous care must be taken to ensure that outside organisations do not offer a service below what the public can demand from a government body. On this matter, I cannot imagine what objections the Minister would have. If he feels that these standards are suitable for a government body, they must also be applicable to private or non-governmental bodies.

In summary, the amendment addresses the reasonable concerns raised in Committee about the wholesale application of Section 11 to this area. On the other hand, we must insist that the provisions are in primary legislation to give children the security that they need and to protect their welfare. I beg to move.

My Lords, on behalf of the Liberal Democrats, I support the new clause to safeguard and promote the welfare of children. Who could vote against such a clause? As with so much else in the Bill, we are here concerned with the effect on children. In previous debates and many questions about ratifying completely the United Nations Convention on the Rights of the Child, we always come to the argument that any ratification should not undermine the United Kingdom’s immigration policy. I think that we can resolve that issue once and for all in the Bill.

Are our commitments to the United Nations and in European conventions to take our place on the international stage 100 per cent, or do we continue to pick and choose and to refuse to ratify certain protocols? We have an opportunity here not only to safeguard children but to reinforce our commitment to international obligations. If we continue to say, “We will ratify this but not that”, we are telling all nations, “You can pick and choose also. If you do not want to approve a certain part of a treaty, there is no need, you can pick and choose”. If we want to lead internationally—this is surely an opportunity for Her Majesty's Government to do just this—in the global sphere, we have the opportunity to do so by saying, “Yes, we will put our obligations to children above that to any United Kingdom policy”.

Noble Lords on the opposition Benches who are not Liberal Democrats might find it difficult to take that point of view, but those treaties were hard fought. The conventions were argued through and through on the international stage. Now, in the 21st century, we can say that our obligations at this level must be agreed to and reinforced. Our obligations towards children in the Children Act 2004, for example, must be enshrined on an international level. We must promote children’s welfare and all ways of safeguarding children. In so doing, we take another step towards international understanding and international action. Two things are involved here: the welfare of the children and the UK taking a lead on a world level. I support the amendment.

My Lords, I have spoken enough on these issues. We are having a complicated evening because the same points will crop up in different contexts all the time. Therefore, many of the arguments that I deployed earlier are highly relevant here.

The amendment is not as strong as I would like, but it goes further than the present situation and in that context I positively welcome it. However, I want to draw to the attention of the House the point about the National Asylum Support Service, the Immigration Service and an immigration removal centre. If we are trying to make a success of social policy, we must get this straight. When dealing with human trafficking, we must see women as victims. Very often what we are dealing with is crime and the victims of crime rather than primarily an immigration problem. In this case, we are dealing with children and the needs of children who are caught up in an immigration problem. If we are going to get social policy towards children right, there is something to be said for ensuring that you have the maximum number of relevant agencies on board in terms of recognising their responsibility for delivering the right results.

My Lords, I also support Amendment No. 5 to which my name is attached. Our discussions arise from Section 11 of the Children Act 2004, which put a duty on all authorities with any responsibility for children to safeguard and promote their welfare. Schools are excluded from that Act, but they are covered by a different provision. Children in prisons and police stations are covered. The only children not covered by that protection are children in the immigration system.

The history of this approach dates from 1997. The Government charged Sir William Utting to produce a report following many years of scandals in children's homes. The report was People Like Us: The Report on the Review of Safeguards for Children Living Away From Home. In his report he placed strong emphasis on ensuring that:

“Departments of State, and agencies with responsibilities for children, should include safeguarding and promoting the welfare of children in their principal aims”.

The amendment would ensure that the Bill would promote the welfare of these children.

Sir William developed his principles further in later reports. He recognised that safeguarding had to be an active process. We must strive to create an overall environment of excellence if we are to succeed in protecting our children where we have failed in the past. Your Lordships may be aware of the Yarl’s Wood detention centre where families have been held for two years. Originally, it was a category C prison and was simply converted to take families and single adults caught up in the immigration system. Staff from Yarl's Wood were drawn from the custodial sphere. There was little understanding of children in its setting up. It is an example of where children are protected from harm—staff are not allowed sexually or physically to abuse those children, so they are safe enough in that sense.

However, it manifests an active process. One should be thinking, “We are setting up an establishment here for very vulnerable children and families. How can we make sure that the welfare of those children is promoted as far as possible given the circumstances? Of course, we must ensure that there is a strong emphasis on social care professionals in setting up this institution. We would not dream of putting these children in a converted category C prison that has bars”.

I am pleased to hear about the hostel that the Government now propose to move families into. But we should be using that active process and thinking through what we should do if we really want to protect children—if we are serious about that. That is what is omitted at the current time and needs to be caught.

The noble Baroness, Lady Hanham, referred to the Government’s concern about judicial review and the legal opinions that have been brought forward by the Refugee Children's Consortium. Of course, the Government have recently tightened restrictions on judicial review. The Government should be reassured by those steps that their concerns are not well founded.

The difficulty is that we are distinguishing these children from all the other children in this country. We say that “every child matters”. The Government’s legislative framework for children in this country is probably the best in Europe in terms of legislative protection, but then we single out these children from all the other children in the country. That cannot be helpful. We are stepping away from the bitter experience of all our failures in the past in children's homes and other settings, which has informed the thinking that found its fruition in the Children Act 2004. To my mind, it would be most ill advised of Her Majesty's Government to choose at this time to separate the safeguarding and welfare promotion in their thinking about protecting children. I hope that the Minister can move some way forward on that. I welcome Clause 21, which is a step in the right direction.

My Lords, as I said before, I support the amendments. The noble Earl said some important things about them.

In its leader today, the Guardian was rather rude about my party and said that it was weak on this subject. I hope that when these amendments are read, particularly if the Government are persuaded to accept them, the Guardian will appreciate that my party minds very much about what happens to the children of aspiring immigrants. There are huge problems about how you deal with the matter, but we try very hard. The amendments are a good attempt to make sure that all the agencies that are dealing with the matter have regard to safeguarding and promoting the welfare of children.

The amendments add to what the Government have already done in Clause 21 by issuing a code of practice. They also add to and amend the Children Act 2004. However, they are faulty to the extent that they do not also amend the Scottish children's Act, which they would have to do. Should the amendments be accepted, the Government could no doubt attend to that because the principle would be there. I support the amendments.

My Lords, I am delighted that the Conservative Party has embraced these amendments. There is huge support in the country for them and the Minister will have to take note of that. We need this in legislation. When the noble Lord, Lord Avebury, asked whether the Minister had read the code and had found the words “children in detention”, I could not help but look at the Bill and I could not find anything about children in detention. I do not think that the Government have grasped this potentially major election issue. I hope that the Minister will not give us a smokescreen. The draft code of practice is a smokescreen and not the real thing.

Who are these children? I shall comment briefly on them because I have just returned from Afghanistan. My eye was caught by the Home Office statistics for the first quarter of this year which shows that 1,000 Afghan unaccompanied asylum-seeking children are coming here every year, amounting to 38 per cent of the total and the highest percentage in eight consecutive quarters. Having just come back from that country, I appreciate why families are trying to get away. I do not appreciate why the Government are not taking account of individual groups of children. Perhaps the Minister can make reference to that.

There is a duty of care. I mentioned a case from Kosovo in Grand Committee where a family was divided in a dawn raid and taken to Yarl’s Wood in various components—some were in hospital and some were not. The Home Office is not taking this issue seriously enough. I warmly support the amendment.

My Lords, this has been a particularly striking section of this debate. Among the many remarkable speeches, I felt especially privileged to hear the speech made by the noble Earl. I hope very much that the Government will accept these amendments, particularly Amendment No. 5.

I shall make three observations on what the amendment suggests to me. I hope that the first will not undermine the Government’s preparedness to accept it. The language of,

“to safeguard and promote the welfare of children”,

must include the agency’s thinking as it prepares, as it sometimes does, with the courts to argue for the deportation of children as well as adults to places to which people should not be deported. I shall say no more than that, but I have had a good deal of experience this year of that set of questions, particularly in relation to the DRC.

Secondly, I wonder about the language of,

“an individual who is less than 18 years old”.

I hope that it is not mistaken to mention the number, as I have heard and read, of plausible stories of agencies seeking to age children by means that are not fully usable or responsible and even agencies—social services as well as perhaps the Home Office—which have aged children as more than 18 years old when they are less than 18 years old by most likely estimates.

Thirdly, of course there has to be a cut-off point, which, under the Children Act, is 18 years old. I also have evidence of young people who, straight after their 18th birthday, are taken in and proposals are made to deport them to places where, because they have been entirely brought up in this country, they do not speak the language and deportation would be entirely unsuitable. There is also a question of safeguarding and promoting the welfare of children which cannot stop the day after their 18th birthday.

My Lords, this amendment, combined with Amendment No. 16, is helpful. I support it and I urge the Government to accept it. Perhaps I may be allowed to make a tiny drafting point. The last line of Amendment No. 5 would be improved if it read a “child means a ‘person’”.

My Lords, the right reverend Prelate has a point when he says that the conditions of a country of origin should come into considerations of the welfare of the child. When the noble Baroness was moving her amendment, she was very assiduous in underlining the fact that we are talking about the way that the Border and Immigration Agency carries out its duties and not the primary functions it has to discharge in pursuance of the Immigration Act.

We should maintain that distinction in our minds. As the right reverend Prelate correctly feared, it is this point which makes the Government reluctant to accept the wording of the amendment. They will say that if this is on the statute book, people will not be able to deport children and that they would have to cope with massive judicial reviews immediately prior to the exercise of these functions. I prefer the interpretation of the noble Baroness, Lady Hanham, of the amendment; namely, that it applies to the way in which the BIA discharges its duties and not those concerning its primary statutory functions as safeguarding the immigration control of this country. If we make that distinction there will be no problem, but if we fail to separate the two things in our minds and we allow the Minister to claim that we are enabling a coach-and-horses approach to JR, we will never be able to persuade the Government to accept it.

I wish to emphasise one other point. I agree with the noble Baroness about bringing in the contracted-out functions under subsection (1)(b) of the amendment. An increasing number of duties placed on the BIA are contracted out to private organisations. It is important that they should be constrained by the same rules as those who exercise these functions on behalf of the BIA. Detention centres are all managed by independent companies—for example, Yarl’s Wood, Tinsley House and Harmondsworth. I think that every one is managed for the BIA and not by the BIA. Therefore, it is essential that this clause should apply to them as it does to the BIA.

Finally, the contracted-out functions also are not in the code of practice. I am afraid I have to say that this document is a great disappointment. I am not altogether surprised that the Government made it available to us only at 3.14 pm. They presumably did not really want anyone to pick holes in it during these proceedings. If this is what the final document is to be like, it is an enormous disappointment and Clause 21 will be an equal disappointment to your Lordships if it is found to be a false prospectus. I hope that that is not the case and that this draft can be considerably improved before we see the final version.

My Lords, I, too, support Amendment No. 5 and wish to add to the evidence produced by noble Lords on the needs of those who are not eventually deported. My experience has been with families and children who have spent time in detention but who for a variety of reasons have not in the end been deported. I have had contact with their teachers in the community and have heard of the damage which their teachers believe has been done to those children during the time that they have spent in detention. While it may not be possible to avoid that, a clause like this would provide some defence against the treatment which those children have experienced.

We have heard a lot about extreme circumstances and the wholly exceptional. My difficulties are with those circumstances that do not seem to be extreme or wholly exceptional, but in which people are taken into detention and there is no clear indication that they are actually going to be deported at the end of that time. It adds to the evidence which noble Lords have produced that we really do need a clause to provide real protection for children. If the Minister cannot accept the amendment in this form, I hope that he can indicate what provision he will be able to make for children who come into the detention sector in this way.

My Lords, I thank all noble Lords who have contributed on this important set of proposals with their usual thoughtful observations. I recognise completely that this is a sensitive issue and one which obviously excites all those concerned about the welfare of children. I am entirely at one with the motive behind the amendments, even if I cannot find myself in agreement with them. We must all make sure that we do the best for those that come into our care, and I understand why noble Lords have been so exercised on this issue.

Before I go into the detail of the amendments, it is worth responding to the general point made by the noble Lord, Lord Avebury, about the draft code which has been circulated. I answer the question about why the code does not refer to detained children in this way: the code does not make a specific reference because it has been designed to cater for the multiple circumstances and situations where BIA staff come into contact with children. The code states clearly that it will identify those specific situations which will include detention and then issue instructions to ensure that staff are responsive to the needs of children in those particular circumstances. Perhaps I may also make another point regarding the document. In bold and at the top it states:

“This document represents a high-level draft which may be amended before being issued for formal consultation”.

So it is at a stage before it is put out for formal consultation. In that context, I should say that we are extraordinarily grateful to the children’s charities—I will not draw attention to individual charities—for their help and assistance in our thinking on this issue. Their knowledge and insights are valuable and inform us on our approach.

I am sure that noble Lords who have considered the issues presented by these proposals will share my view that it is a question of means and not just ends. Many measures that have the effect of safeguarding children are already in place and have been so for many years. Noble Lords will be aware of those measures from our debates in Grand Committee. I should like to focus on what the Government are proposing to do next so that we can make things better in the light of an up-to-date appreciation of children and migration issues. Amendment No. 5 seeks to amend Clause 21 so as to broaden the scope of the Border and Immigration Agency’s duty in relation to children, bringing it into line with the safeguarding duty in Section 11 of the Children Act 2004. It also seeks to impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency. A number of noble Lords made reference to that. I ought to make it clear at this point that we sympathise with the part of the amendment which seeks to secure that contractors providing services on behalf of the agency should have the same responsibilities in respect of children, but not with the nature of the responsibility proposed. I ought also to make clear that this is a point I shall return to when we come to debate Amendments Nos. 23 and 24 to Clause 21, which I hope is of assistance.

On the other hand, Amendment No. 16 seeks simply to make the Border and Immigration Agency subject to Section 11. Essentially, admirable though the Section 11 duty is at the level at which it has been introduced, it creates uncertainty as to how it can and should be applied in the immigration context. That uncertainty is undesirable both for applicants and for those who have to implement legislation. That is why the Government believe that a code of practice both standardises what the duty actually is and makes more transparent our commitment to safeguarding children. It is the most appropriate means by which to deal with the issue.

Before I come to the code, I would like to make some points about the amendments. First, it is inaccurate to insist that these amendments are necessary to avoid children being left unprotected. The legislation that currently provides protection for children operates regardless of a child’s immigration status. Secondly, we do not think it appropriate for the Border and Immigration Agency to have a duty which requires it to have regard to ensuring that children are growing up in circumstances consistent with the provision of safe and effective care and to undertake that role so as to enable those children to have optimum life chances and enter adulthood successfully, as the statutory guidance accompanying the duty requires. While the duty is not intended to interfere with the performance of the agency’s primary functions, we are very concerned that the breadth of the duty would invite challenges to our decisions on the basis that they do not promote a child’s welfare. Experience shows that many of these challenges would be made simply as a means of frustrating the implementation of quite legitimate immigration control. They could add to the already frequent attempts to delay removal or hinder other aspects of immigration control functions. For those reasons, I must resist the amendments.

However, it may be helpful to explain in more detail why the agency cannot take on a wider welfare role such as that envisaged by Section 11. The primary function of the Border and Immigration Agency is to protect UK borders by implementing and enforcing immigration legislation. This involves determining whether someone in the UK is lawfully here or not. Durable solutions for a child’s future can be made by the agencies principally charged with those responsibilities. In reaching that determination, the Border and Immigration Agency must ensure that it looks after children quite properly. However, it cannot realistically assume a responsibility for promoting the welfare of children in the longer term, given that its primary purpose is to ascertain whether the child’s presence in the UK is lawful and to take appropriate action on that basis. It is therefore appropriate to define the agency’s responsibilities towards children in terms of keeping them safe from harm.

It is important to be clear what this means, and the code of practice that we are proposing will do this in detail. The proposed code of practice commits the Border and Immigration Agency to doing the following things. We will identify specifically those situations where we come into contact with children, whether face to face or on paper, and we will ensure that we handle those situations in ways responsive to the needs of those children. We will keep staff informed of the professionally accepted signs and indicators that help to identify when a child may be at risk of harm and give them the confidence to take action. We will take action where relevant by referring a child to the appropriate agency—that with the principal statutory responsibility, usually the local authority.

While we cannot anticipate fully the areas of work of the independent Border and Immigration Agency inspectorate, we can and will encourage the chief inspector to look at the reasons for detaining families with children, the way in which they contribute to the outcome of the immigration process, and the nature and quality of the recorded information about detention. We will consider and evaluate alternatives to detention. We will require all staff to undertake an introductory training course in how to identify and be responsive to children and their needs. That training has of course been prepared with input from groups outside the agency, and is ready to be introduced. We will identify and train a children’s adviser in each business unit to act as a point of reference when an issue involving a child arises, such as whether to refer to another agency or not. We see the creation of this role as an important part of embedding a change of culture and approach to children within the agency. We will increase our participation in the local safeguarding children’s boards and will develop and keep up to date a protocol with the family courts on how to approach cases where a child subject to immigration control is likely to be made the subject of a care order. We will take part in appropriate information sharing with other agencies that have responsibilities for safeguarding children.

The code is a significant programme of work for the agency where the aim is to encourage staff to realise how they can become more responsive to the needs of children. It also requires staff to be vigilant and to make every effort in their work to keep children safe from harm.

Crucially, this will not be simply a token document. There will be instructions to staff as a result of the code and these are being developed with input from outside organisations with relevant experience. Staff will be expected to follow this code or to have clear reasons for not doing so. The code will be a detailed document and in drafting we will continue to consult widely. We will also continue to work with interested parties such as the Association of Directors of Children’s Services, the new Department for Children, Families and Schools, the Children’s Commissioner, officials in the devolved Administrations as well as the Children’s Society and Barnardo’s, which has already expressed its willingness to work with us on the code’s development. In fact the Children’s Commissioner said the following in relation to the code:

“I think I expressed my appreciation when we met in September that the Government has moved significantly and is travelling in the right direction by introducing a Code of Practice to place a safeguarding duty on immigration officials. I commend the fact that you have taken this initiative”.

So that is our approach. I argue that it is thorough, comprehensive and in the long-term interests of children who, for one reason or another, come into contact with the Border and Immigration Agency.

Perhaps I should say in answer to the noble Lord, Lord Avebury, that, in addition, the code aims to establish in Part 1 principles that staff in the BIA must follow. The code will be supported by a series of strong instructions to staff, eight of which are in draft, including one pertaining in particular to children detained.

So that is our approach to these matters. I understand the sensitivity of the issues involved but, given what I have said, I would urge noble Lords to withdraw the amendment.

My Lords, I thank the Minister for his reply and I thank all of those who have contributed to the debate and who have supported my amendment. I am grateful to the Minister for letting us have a copy of the code of practice, but it is a bit late. After listening to what he said in his response, it seems to me that what we have got is probably not complete. It categorises itself as a high-level document and some of the criticisms which have arisen from the noble Lord, Lord Avebury, and one or two others, are probably brought about by the fact that it clearly does not quite cover all the areas that it is going to cover. I gather from the way the Minister has put his points when talking about the future that indeed there is far more to be done on this code of practice than is here before us. So it will not help a great deal as we consider whether the amendment should continue to be moved.

I think I am grateful for the Minister’s sympathy with the contracting-out aspect. I hope in expressing that, he means that he will come back at a later stage with something which will help us with that issue. Where other agencies are involved, it is terribly important that they are covered by this code of practice. It is essential that anyone dealing with children under these extremely difficult circumstances should at least be following a common line so that all agencies know what they are doing and are all doing the same thing. That may or may not be covered—it was not absolutely clear whether it would be—but I hope that later on in the Bill the Minister will be able to help on that issue, although I am not going to count on it.

I turn now to the main part of the amendment which concerns the safeguarding and welfare of the child. Again, I hear what the Minister says—that the Border and Immigration Agency cannot have a responsibility for the welfare of the child—but if the agency does not have responsibility for the welfare of the child, who on earth does? The children are within its control and within its remit. It may be that that throws it a little wider as far as responsibilities are concerned under the Children Act, but at the moment these children are outside all the areas that will keep them safe from harm and look after their welfare.

I thank the Minister for his rather limited response to the amendment. Clearly, it is too late for us to give proper time to the code of practice as it appears at the moment. As the Minister is absolutely adamant about not including a duty to promote the welfare of the child, I wish to test the opinion of the House.

My Lords, I beg to move that further consideration on Report be now adjourned, and in moving this Motion suggest that the Report stage should recommence at 8.46 pm.

Moved accordingly, and, on Question, Motion agreed to.