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Borders, Citizenship and Immigration Bill [HL]

Volume 708: debated on Wednesday 25 February 2009

Committee (1st Day) (Continued)

Amendment 33

Moved by

33: After Clause 22, insert the following new Clause—


(1) A designated immigration officer or a designated customs official at a port in England, Wales or Northern Ireland may detain an individual if the immigration officer thinks that the individual—

(a) may be liable to arrest by a constable under section 24(1), (2) or (3) of the Police and Criminal Evidence Act 1984 (c. 60) or Article 26(1), (2) or (3) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)), or(b) is subject to a warrant for arrest.(2) A designated immigration officer who detains an individual—

(a) must arrange for a constable to attend as soon as is reasonably practicable,(b) may search the individual for, and retain, anything that might be used to assist escape or to cause physical injury to the individual or another person,(c) must retain anything found on a search which the immigration officer thinks may be evidence of the commission of an offence, and(d) must, when the constable arrives, deliver to the constable the individual and anything retained on a search. (3) An individual may not be detained under this section for longer than three hours.

(4) A designated immigration officer may use reasonable force for the purpose of exercising a power under this section.

(5) Where an individual whom a designated immigration officer has detained or attempted to detain under this section leaves the port, a designated immigration officer may—

(a) pursue the individual, and(b) return the individual to the port.(6) Detention under this section shall be treated as detention under the Immigration Act 1971 (c. 77) for the purposes of Part 8 of the Immigration and Asylum Act 1999 (c. 33).”

This follows on from our earlier discussion on PACE. Under the UK Borders Act 2007, PACE applies for immigration officers, but also laid out very clearly in the Act is this clause on detention. It seemed to me that this was as important in this legislation as elsewhere, because detention by those who are not police officers and who do not have police powers is onerous not only on them but on the people whom they are detaining.

It seems more than proper that how people are detained and the terms of detention should be laid out on the face of the Bill. That is why we have put this in. We feel that it should be there to be referred to as part of this Bill and subsequently as part of this Act. The amendment would simply designate the powers of a designated immigration officer or designated customs official as to what they cannot do when they are arresting someone and holding them for three hours, because that is all that they are entitled to do before they pass the person to the police for charging or consideration of charging. The measure was important enough for the 2007 Act; it is certainly important enough for this one. I beg to move.

As I understand it, this amendment repeats the powers of detention that UKBA officials already have under the UK Borders Act 2007 to detain a person for as long as is reasonably necessary while a search is being carried out. HMRC officials already have this power and they can detain a person who does not agree to a search and can make an arrest if necessary. Designated UKBA officials will inherit these powers, as it were. However, the differences between their powers of arrest and search when acting in their two different capacities may well cause problems. I can see the argument for aligning the powers between the two roles and I would like to know why there is a need for designated immigration officers to act under different statutory provisions regarding detention and search according to whether they are acting in one role or the other. Will it always be clear to both the designated immigration officer and the individual being searched or detained under which set of powers they are operating? Will the person who is effecting the detention serve notice on the individual to be detained or searched under which set of powers he is acting?

I thank the noble Lords for those two points. They have raised a couple of issues that I was not quite clear on, so I would very much like to take this away and think about it, as there might be something in having to adjust this. If I could look at it and come back to noble Lords, that would resolve both points. Both noble Lords have raised something that I had not quite twigged when I was reading through this. I would like to come back on that basis if the noble Baroness is willing to withdraw the amendment.

I am always very happy to have enlightenment on these matters. I am happy to withdraw the amendment, but perhaps the Minister can let us have whatever he is looking at in good time so that we can come back to this matter on Report, if we think that that is required. I shall wait for illumination and, for today, beg leave to withdraw the amendment.

Amendment 33 withdrawn.

Clause 23 agreed.

Amendment 34

Moved by

34: After Clause 23, insert the following new Clause—

“Short-term holding facilities

In section 147 of the Immigration and Asylum Act 1999 (c. 33) (removal centres and detained persons: interpretation), in the definition of “short-term holding facility”—

(a) omit “solely”, and(b) at the end insert “(whether or not it is also used for the detention of other persons for any period).”

I am taking government Amendments 34 and 125 together, as they are related. They are linked to the provision that we are making elsewhere in Part 1 to ensure the effective application of PACE and the related codes of practice to the UK Border Agency. The amendments will provide the agency and Her Majesty’s Revenue and Customs with the flexibility in the future to use short-term holding facilities to detain persons other than those who are detained under the administrative provisions of the immigration legislation.

The new clause achieves that by amending the definition of a short-term holding facility in Section 147 of the Immigration and Asylum Act 1999. A consequential amendment is also made to the schedule to this Bill. As a result of the amendment, the definition of a short-term holding facility will be,

“a place used for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed whether or not it is also used for the detention of other persons for any period”.

I should stress that these amendments do not impact in any way on the treatment of administrative immigration detainees. The treatment of such persons will continue to be governed by existing arrangements, and the period for which their detention in a short-term holding facility is permitted will be unaffected.

The amendment will simply allow the UK Border Agency and HMRC to use short-term holding facilities to detain persons following arrest where this is in accordance with the provisions that we are making in relation to the application of PACE and the associated codes of practice. I hope that the Committee will agree to it.

This takes us back very smartly to considering the need for the previous amendment, which is to be looked at, as that will of course govern what happens in short-term holding facilities. The Minister was silent on what a short-term holding facility is. If it is a facility for seven days, surely it cannot be a police cell. Perhaps when the Minister responds he will be kind enough to tell us what is meant by a short-term holding facility, as well as who is in charge of it and what facilities are available to those being detained. Under the Immigration and Asylum Act, the detainees should not be there for longer than three hours if an immigration officer or customs official is in charge. If it is for longer, they should be held by the police. What is the facility that we are talking about? Perhaps the Minister will let us know. Will he also tell us who is in charge of these holding facilities? Is it the police or the agents of the UK Border Agency? May we hear a bit more about it?

The Minister has answered one of my questions, which is how short term is short term. Some of the other so-called short-term detentions run into months and years, but I understand that we are not talking about those facilities here. The questions raised by the noble Baroness, Lady Hanham, concern matters that we, too, want to know about, but I should also like to know the extent of what we are talking about in relation to these facilities. Are we talking about detention centres outside the UK—for example, at Sangatte near Calais? I echo the questions of the noble Baroness, Lady Hanham, about who is in charge and particularly whether this provision applies to places outwith the UK. If it does apply to holding centres in other countries, will they be staffed by UK border staff or will that work be subcontracted to in-country people? Those are my initial questions, although I may want to come back when the Minister has had a chance to answer some of them.

One can understand that there might be a need for a short-term holding facility for a few hours where some queries or problems arise or where there is a lack of the right person to deal with the case, but it makes one a little suspicious when this new type of facility is introduced as a government amendment in Committee, previously unannounced. Does it mean that there will be many places in such short-term holding facilities, on top of the existing and considerable number for long-term detention? Is it envisaged, or could there be cases, in which people are transferred from short-term holding to indefinite detention places? The whole thing is obscure and may not be entirely satisfactory.

I supposed that there would be some explanation of a short-term holding facility in Part 8 of the Immigration and Asylum Act, but I know of cases where persons have been arrested and taken into police custody for short periods. Those are the sort of places where the seven-day limit applies. Presumably, if the police hold people in cells for a short time before transferring them to immigration removal centres, they are required to operate under the PACE codes of practice. That makes it all the more incongruous that somebody held in that manner can be given the protection of PACE, whereas someone held for longer periods in immigration removal centres does not benefit from that provision.

This relates to something that happened to come up this morning in the Home Affairs Sub-Committee, of which I am a member. There is a directive coming down the track from Europe under which unaccompanied minors should not be detained at all. What will the arrangements be in future for them? Have the Government anticipated the legislation coming into force from Europe, with which I believe we are likely to line up? If so, what arrangements will they have for holding unaccompanied minors who are thought to be illegal entrants but cannot be held either in immigration removal centres or short-term holding facilities under this clause?

The short-term holding facilities are UKBA accommodation that we currently use for the short-term detention of a person detained under the immigration Acts, so we are saying that those can now be utilised by all people in the border agency. We would all approve of the fact that the PACE codes relate to it. The officer in charge of the short-term facilities, as the case is today and has been for the past two or three years, will be the detainee custody officer.

On jumping from short-term to long-term, this is only for the short-term and everyone has to go through due process thereafter. They do not shift from the short-term to the long-term; I will make absolutely certain of that. If that point is wrong, I will get back to the Committee on it, but that is as I understand it.

May I get back to the noble Lord, Lord Avebury, in writing about a European directive on children, as that is quite a complex issue? The noble Baroness, Lady Miller, asked whether this provision applies to holding facilities outside the UK, such as in Sangatte. Clause 53 covers the extent of the Bill: it provides that Clauses 22 and 23 apply only in England, Wales, Scotland and Northern Ireland. I hope that that answers that question.

May I puzzle a bit more on this? If these holding centres are already there, I am not quite sure whether the amendment to the Immigration and Asylum Act is that these powers should be extended to the new customs officials. Is that the point? Secondly, short-term holding facilities are, presumably, limited to three hours and people are then passed from the hands of the immigration officers or the customs revenue officers to the police, for consideration on whether they should be charged. Under PACE or the detention rules, officers can hold people only for three hours before the police are involved. Is it then intended that, if someone is held in those short-term facilities, the police become involved and, if they are held for longer than three hours, they are then held by the police?

I am afraid that I cannot give an exact answer to the noble Baroness. I know that the reasoning behind the three-hour period was to enable people to be held until the police arrived, so that a proper charge could be made. I am a little confused myself over this short-term facility, as I understood it to be something that the UKBA uses as accommodation for short-term detention of a person detained under the immigration legislation. I am unsure exactly how they get to that status, so if I may I will get back to the noble Baroness on that specific point.

When the Minister responds to us, perhaps he could consider the case that I mentioned where illegal entrants may be detained by the police for a short period while they are awaiting transfer to the custody of an immigration officer. I remember one case where a woman who had nowhere to go was found wandering on the road. She was taken into custody by the police, who discovered that she was an illegal entrant. Subsequently, they handed her over to the Immigration Service. There are therefore cases where the police are forced to hold persons who are subject to immigration control pending the arrival of an immigration officer to take them to some more permanent location. It is in those cases where the police cell acts, in the ordinary meaning of the English language, as a short-term holding facility, although it may not be defined as such under the Immigration and Asylum Act. I was trying to satisfy myself that the same provisions that would apply to a short-term holding facility would apply to the police under those circumstances.

That is a very good question, and I will try to resolve exactly what would be the status. On that basis, I would be grateful if the amendment were accepted.

Amendment 34 agreed.

I am so sorry, but may I intervene? I do not know how we can accept an amendment on which the noble Lord will come back to us for us to decide whether it is acceptable.

Clause 24 agreed.

Clause 25 : Facilities and services

Amendment 35

Moved by

35: Clause 25, page 17, line 41, after “make” insert “all existing”

The amendment is intended to probe what facilities and services will be made available to any person who is empowered to exercise immigration, asylum, nationality or customs functions. The real question is: are the existing facilities adequate? Many small ports and airports may well not have adequate facilities to adapt to housing facilities with multiple functions. Will there be an impact on running costs? Will facilities at the smallest entry points be reinforced? My party has long said, and the shadow Home Secretary, Chris Grayling, said shortly after 9/11, that the weak link in our border defences is at those small ports. Will the use of existing facilities be enough to allow the Government to make good their commitment, of which the Bill apparently forms a vital part, fully to protect our borders? I beg to move.

The noble Baroness proposed in Amendment 1 a new clause that would have created a UK border police force separate from the agency. That amendment has been resisted. The effect of this amendment to Clause 26 would be that the independent chief inspector would have only an oversight role in respect of those immigration, asylum and nationality functions exercised by the Border and Immigration Agency. The intention underpinning Clause 26, however, is that the chief inspector should oversee the full range of functions to be exercised by the UK Border Agency, including those customs functions for which the agency will have primary responsibility at the border. The UK Border Agency was established in shadow form in April 2008 and, as a result, the Border and Immigration Agency no longer exists. That being so, the independent external scrutiny provided by the chief inspector needs to cover all the functions of the UK Border Agency.

As regards the issue of full protection of all the minor ports, as I said earlier, there is no doubt that the new structure is enabling us to have much greater coverage. In that sense, therefore, we are much more secure. We do not, however, have full cover of all our minor ports. A lot of this is intelligence-based and making maximum utility of what is a far more flexible force because of the measures we have in this Bill. I hope on that basis the noble Baroness will agree to withdraw her amendment.

I thank the noble Lord for his reply. The first part did not relate to the amendment. The amendment is seeking to make sure that the facilities and services which have been available for Her Majesty’s Revenue and Customs will now be made available to the new agency and that those facilities will not be withheld. I hope the answer to this will be yes and I will therefore withdraw the amendment.

Amendment 35 withdrawn.

Clause 25 agreed.

Clause 26 : Inspections by the Chief Inspector of the UK Border Agency

Amendment 36

Moved by

36: Clause 26, page 18, line 5, leave out subsection (1)

We now turn to the inspectorate—the Chief Inspector of the UK Border Agency. I had been going to ask why we had both the UK Border Agency Chief Inspector and the Inspector of Constabulary involved in both of these. I think I am right in saying that under the Customs and Revenue legislation of 2007 they are both involved anyway. I assume, therefore, that this is a direct lift from the Act and if that is not correct perhaps someone can let me know.

We need to know what additional resources will be made available to the Chief Inspector of the UK Border Agency before the jurisdiction is extended under these subsections. Can the Minister tell us, given the wide jurisdiction currently employed by the chief inspector, which has replaced several previous inspectorates, and the evident impairment on the inspector’s capacity to provide the oversight intended by Parliament when passing UK Borders Act, if he is now being required to satisfy an extended jurisdiction without commensurate additional resources? I beg to move.

In a quick answer on the first point raised by the noble Baroness, it is a direct lift so that is covered. The effect of this amendment to Clause 26 would be that the independent chief inspector would only have an oversight role in respect of those immigration, asylum and nationality functions which were exercised by the Border and Immigration Agency. The intention underpinning Clause 26, however, is that the chief inspector should have oversight of the full range of functions to be exercised by the agency, including customs functions for which the agency will have the prime responsibility at the border.

The UK Border Agency was established in shadow form in April 2008 and as a result the Border and Immigration Agency no longer exists. That being so, the independent external scrutiny provided by the chief inspector needs to cover all the functions of the UK Border Agency. I hope that covers the noble Baroness’s points and that she will agree to withdraw the amendment.

I asked the Minister specifically about resources—whether extra resources will be made available, presumably both in financial and personnel terms.

So far as I am aware, the extra resources to enable him to carry out that function have been made available. If I am wrong, I will get back in writing.

Amendment 36 withdrawn.

Debate on whether Clause 26 should stand part of the Bill.

Going back to the matters we were discussing earlier today, in Clause 26(2), at new subsection (1A)(a), we have,

“officials of the Secretary of State exercising customs functions”,

and in new paragraph (c) we have the Secretary of State,

“in so far as the Secretary of State has general customs functions”.

Are we to take it that designated customs officials and officials of the Secretary of State exercising “customs functions” are now the balancing words for general customs matters? Unless that is so, I am puzzled as to why there are quite separate duties for the chief inspector when surveying the efficiency of people in two separate categories.

I am not quite clear on the question. All I can say is that the chief inspector will cover the entire customs area for the border force as well as the previous immigration aspects. He will cover them all. Does that answer the noble Lord’s question?

What I am really asking is this. Earlier today we had a long discussion about tax revenue customs responsibilities and general customs responsibilities. What I am interested in is whether the groups in subsection (2), new subsection (1A)(a),

“designated customs officials, and officials of the Secretary of State exercising customs functions”,

are in the first category or the second category.

I think that the answer is that it is a generic term for general customs functions and revenue customs functions, as defined in Clause 14.

I have no problem with the general customs functions. What I am interested in is what is being alluded to in new subsection (1A). It is only because of the discussion we had earlier and I am not seeking to reopen the issue.

It is probably best if I send the noble Lord an explanatory note to make sure that we are absolutely clear on the point.

Clause 26 agreed.

Clause 27 agreed.

Clause 28 : Complaints and misconduct

Amendment 37

Moved by

37: Clause 28, page 20, line 34, at end insert—

“( ) Section 41 of the Police and Justice Act 2006 (c. 48) (immigration and asylum enforcement function: complaints and misconduct) is amended as follows.

( ) In subsection (1)(b) after “asylum” insert “whether in the UK or overseas;

(c) the provision of services by another person pursuant to arrangements which are made by the Secretary of State and relating to the discharge of a function within paragraphs (a) and (b).””

The amendment would allow the IPCC to entertain complaints about acts of HMRC and UKBA officials and their private contractors both within and outside the UK. Together, the two amendments would also allow us an opportunity to understand the respective jurisdictions of the IPCC and the Prison and Probation Ombudsman.

Section 41 of the Police and Justice Act 2006 empowers the Home Secretary to confer jurisdiction upon the IPCC to investigate complaints of misconduct against immigration officers, and the purpose of our amendment is to ensure that complaints can also be made to the IPCC about the conduct not only of customs and immigration officials, but also of their private contractors. We are somewhat pleased to note the Government’s response to our amendment with their Amendment 38, but disappointed that they have confined their amendment to the United Kingdom.

The Cabinet Office report published in November 2007, Security in a Global Hub, which has already been mentioned several times, remarks that:

“The drive to push as much border control activity as possible overseas has been a key theme in the development of border management over the past decade”.

This objective has meant that immigration powers are exercised increasingly by UKBA officials and private contractors overseas, including at the “juxtaposed controls” where UK officials and private contractors exercise immigration powers at EEA ports with the agreement of the Governments of France and Belgium. As the report says, the use of these powers overseas has significantly expanded since the Home Secretary was given the power in January 2003 to exercise immigration control at European Economic Area ports. However, officers were using these powers overseas before then, such as at Prague airport in 2001.

Although airline liaison officers overseas have the right to stop people boarding flights, it is really at the juxtaposed controls that our wording is to be preferred to that of the Government because at those locations the powers of search, detention, fingerprinting and so on may be exercised by both immigration officers and private contractors. The private contractors may carry out other immigration functions overseas, as I have already mentioned, such as escorting people who are being removed from the UK.

The dossier of allegations in the document Outsourcing Abuse which is currently, as I mentioned earlier, subject to investigation by Dame Nuala O’Loan, includes assaults by private contractor escorts outside the UK. As I mentioned, 3 per cent of the allegations recorded were assaults on aircraft after take-off from the UK, and one can assume that assaults at that point would be less likely to be recorded because of the practical difficulties facing someone who has been removed.

The report states:

“The authorities appear reluctant to investigate reported assaults which often happen behind closed doors, with no witnesses”.

We have already noted in the discussion on Clause 22 the Government’s stated commitment to strong oversight, transparency and accountability of the UKBA. So the absence of jurisdiction for the IPCC to investigate complaints of misconduct by immigration officers and their private contractors exercising immigration functions overseas is a significant omission, only partially repaired by the government amendment.

So, while we are grateful to the Government for having gone some way towards our proposals, we are more concerned than ever to ensure that oversight of what happens outside our borders is placed on the same footing as it is within the UK. The scope for abuse is almost inevitably greater when the chances of detection are lessened, and vulnerable individuals deserve and need the protection that our amendment will afford. I beg to move.

Clause 28 extends the regulation-making powers of the Secretary of State in Section 41 of the Police and Justice Act 2006 to enable her to confer functions on the Independent Police Complaints Commission in relation to serious complaints, incidents and conduct of matters in respect of the exercise of functions of the border force under Part 1 of the Bill. I am grateful to the noble Lord for his amendment and for bringing forward scrutiny of this area of the Bill.

The Government have also tabled an amendment to Clause 28 and I should like to deal with this first before turning to the amendment proposed by the noble Lord. Clause 28 as introduced would enable the Secretary of State to make regulations allowing the Independent Police Complaints Commission to oversee serious complaints, incidents and conduct matters relating to the provision of contractual services in relation to the discharge of customs functions in England or on behalf of the UK Border Agency. The Government, however, wish to give the IPCC the same oversight role in respect of the provision of contractual services in relation to the discharge of those immigration and asylum enforced functions specified in Section 41(2) of the Police and Justice Act 2006, which the UK Border Agency exercises in England and Wales. It is for this reason that the Government are bringing forward this amendment to Clause 28. The Government feel that the amendment would strengthen the independent oversight arrangements for these functions.

In his Amendment 37, the noble Lord has identified that Clause 28 only secures oversight of contractors exercising customs’ functions. As I have explained, the Government will move an amendment to Clause 28 to ensure regulations can secure oversight over contractors exercising both customs functions and functions in relation to immigration and asylum matters. We are therefore agreed on the underlying purpose in relation to the need to cover contractors, but we prefer our slightly simpler amendment on that point.

The amendment proposed by the noble Lord would also extend the oversight of the IPCC to oversee the exercise of specified enforcement functions by officials of the Secretary of State in the UK and overseas. The Government do not believe that the amendment is necessary as officials working at our diplomatic posts overseas do not exercise enforcement powers. At our juxtaposed controls in France and Belgium, UK Border Agency officials are exempt from prosecution under French or Belgian law for acts committed in the UK control zone in the course of their duties. Under the terms of the treaties in place for juxtaposed controls, any complaints are investigated by the authorities of the host state and all evidence gathered is handed over to the relevant authorities in the UK for consideration under UK law.

The Government are considering whether an independent oversight system can be put in place for matters arising at the juxtaposed controls that do not warrant criminal investigation but do constitute serious misconduct. Currently such matters would be investigated by the agency’s professional standards unit but are not subject to independent oversight. All criminal matters that do not relate to an official function in the UK control zone are a matter for the French and Belgian authorities and will be processed in accordance with their domestic legislation.

The Government are committed to securing appropriate oversight of all the UK Border Agency’s complaints, incidents and conduct matters relating to exercise of enforcement powers. However, it has always been intended that the territorial extent of the IPCC be limited to England and Wales. I hope the noble Lord will agree and feel able to withdraw his amendment.

It seems to me that the Minister has not covered the oversight of contractors who are escorting people being deported from this country to somewhere overseas.

It has always been intended that territorial extent should be limited to UK territory. Presumably the noble Lord is referring to aircraft travel or when the person has landed in another country. There are some difficulties in having the IPCC being responsible for that investigation. I am very happy to investigate whether that is the case; that is what I would have thought would be the problem.

I am most grateful to the Minister for the information. As I understand it, if the complaint relates to a criminal matter in the juxtaposed control, that falls under the responsibility of the criminal investigative authorities in France or Belgium as the case may be. If it falls short of that, the Minister said he was considering independent oversight of matters that were complained about that did not constitute criminal offences. So that is a step in the right direction, but as the noble Lord, Lord Hylton, said, it does not go far enough, because we are talking not only about juxtaposed controls but about any activity by private contractors that is exercised in pursuance of their immigration powers outside the boundaries of the United Kingdom.

The particular case that the noble Lord, Lord Hylton, raised—I have raised it a couple of times—is where escorts are used to take somebody on an aircraft from the United Kingdom to his country of origin. I have already mentioned the assaults that are alleged to have taken place on those aircraft. This is a bit of a black hole because the Minister did not give any undertaking that we would consider an independent complaints mechanism relating to those cases.

If I am not pressing my luck too far, may I ask the Minister whether the undertaking that he has already given that the Government are looking at an independent complaints mechanism in relation to the juxtaposed controls could be extended to cover other activities by private contractors overseas, or en route overseas, that are exercised on behalf of the Immigration Service? That would apply to the escorts accompanying people being deported from the United Kingdom and it would apply to airline operatives abroad who have been there for a long time—airline liaison officers—or any other official who is located outside the boundaries of the United Kingdom and who is exercising functions on behalf of the Immigration Service. It would be an enormous step forward if the noble Lord could give us the assurance that the investigation of independent complaints mechanisms relating to Sangatte and other juxtaposed controls could be extended to cover these other areas.

I gather from my Box that the IPCC jurisdiction does not cover detention in the escorting of prisoners on probation outward from the UK. An individual being escorted for deportation—the noble Lord mentions alleged cases that I cannot talk about—is really for the Prisons and Probation Ombudsman. There probably is something here that needs a little more looking into. My Box tells me that this is a Prisons and Probation Ombudsman issue but I will look into it a little more because it looks like something could fall between the cracks and I want to look at it.

I would be very happy about that. If the noble Lord takes a look at whether the Prisons and Probation Ombudsman could entertain the complaints that are arising not from the juxtaposed controls but take place outside the United Kingdom, that would be the sort of step forward that we would very much like to see. With that, I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendment 38

Moved by

38: Clause 28, page 20, line 37, after “functions)” insert “—

(a) after subsection (1)(b) insert—“(c) the provision of services pursuant to arrangements relating to the discharge of a function within paragraph (a) or (b).”, and”

Amendment 38 agreed.

Clause 28, as amended, agreed.

Amendment 39

Moved by

39: After Clause 28, insert the following new Clause—

“Complaints and misconduct: Northern Ireland

(1) The Police (Northern Ireland) Act 1998 (c. 32) is amended as follows.

(2) After section 60 insert—

“60ZZA Immigration and asylum enforcement functions: complaints and misconduct

(1) The Secretary of State may make regulations conferring functions on the Ombudsman in relation to—

(a) the exercise by immigration officers of specified enforcement functions;(b) the exercise by officials of the Secretary of State of specified enforcement functions relating to immigration or asylum;(c) the provision of services pursuant to arrangements relating to the discharge of a function within paragraph (a) or (b).(2) In subsection (1) the reference to enforcement functions includes, in particular, reference to—

(a) powers of entry;(b) powers to search persons or property;(c) powers to seize or detain property;(d) powers to arrest persons;(e) powers to detain persons;(f) powers to examine persons or otherwise to obtain information (including powers to take fingerprints or to acquire other personal data); and(g) powers in connection with the removal of person from the United Kingdom.(3) The Secretary of State may make regulations conferring functions on the Ombudsman in relation to—

(a) the exercise by designated customs officials, and officials of the Secretary of State, of customs functions within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009;(b) the exercise by designated Director of Border Revenue, and any person exercising functions of the Director, of customs revenue functions within the meaning of that part of that Act, and(c) the provision of services pursuant to arrangements relating to the discharge of a function within paragraph (a) or (b).(4) Regulations under subsection (1) may not confer functions on the Ombudsman in relation to the exercise by any person of a function conferred on him by or under Part 8 of the Immigration and Asylum Act 1999 (c. 33).

(5) Regulations under subsection (1)—

(a) may apply (with or without modification) or make similar to any provision of or made under Part VII of this Act;(b) may make provision for payment by the Secretary of State to or in respect of the Ombudsman.”.”

This morning, the Northern Ireland Human Rights Commissioners were here in the Palace of Westminster to present to interested Members of Parliament and Peers the commission’s bill of rights for Northern Ireland. This bill of rights has a history which goes back to the Belfast agreement—the Good Friday agreement, as it is better known—and to Section 69(7) of the Northern Ireland Act 1998. The commissioners explained that the bill of rights is particularly important to them because, in the aftermath of the Troubles which they experienced for so long, they feel that rights, equality of rights and proper treatment are crucial, especially in an atmosphere where distrust quickly arises in the light of difficult issues. They have done some terrific work on the bill, which we should soon be debating in this place, and I hope the Government will give it a fair wind. Meanwhile, however, they have no bill of rights and it is up to us to ensure that any legislation we pass is as fair to Northern Ireland as it is to the rest of the United Kingdom. That brings me to the amendment.

We have concerns that Northern Ireland is being treated somewhat differently. The Northern Ireland Human Rights Commission has consistently raised concerns about powers which are properly the role of police officers being delegated to UKBA officers. The commission has concerns about the increasing use and introduction into Northern Ireland of a civilian force that is engaging in police work but which is currently without the same standards, training or accountability as PSNI officers.

As the Committee will be aware, there is a particular policing context within Northern Ireland, including contexts for human rights compliance. As I said, trust takes a long time to build up and is easily lost. The role of the police ombudsman in relation to immigration officers is the subject of ongoing reviews. As far as we are aware those reviews have not yet been concluded, and I would be grateful if the Minister could shed any light on the progress.

In 2007, the Northern Ireland Human Rights Commission, in its response to the consultation on the IPCC oversight of Border and Immigration Agency incidents and complaints, raised concerns that the mechanism for individual complaints to be heard and dealt with, that of the IPCC, did not extend to Northern Ireland. It said:

“The Commission notes that the oversight of the IPCC does not extend to Northern Ireland and that according to the consultation paper ‘any cross border complaints will be dealt with under agreements with the relevant authorities in Scotland and Northern Ireland’ (‘cross border’ in this context meaning as between the UK jurisdictions)”—

not, as we usually think of in Ireland, between the north and the south.

“The cross border activity of BIA is in fact significant, with individuals routinely being transported from Northern Ireland to Dungavel Removal Centre in Scotland and then on to removal centres in England. The need for agreements with the relevant agency in Northern Ireland therefore is a very real and pressing one”.

It is not just a hypothetical issue.

The policing divisions of the Northern Ireland Office were also consulting in 2007 on the recommendations made by the police ombudsman of Northern Ireland. That paper states:

“The Police Ombudsman has been asked to take responsibility for the investigation of serious criminal complaints against the staff of the Immigration Service and Her Majesty’s Revenue and Customs”.

The paper goes on to explain that negotiations were under way to identify the legislative changes necessary to enable the Police Ombudsman to carry out that role. Will the Minister tell the House of progress made in those negotiations?

There seems to be a discrepancy between what is being proposed for the police ombudsman and what has been agreed for the IPCC. The ombudsman’s oversight seems to be restricted to “serious criminal complaints”, implying that only complaints alleging serious crimes committed by immigrations could fall to be investigated by the police ombudsman. Given what the Government have said about ad hoc immigration checks being carried out on the land border, this could raise serious concerns. As there are no proposals in the Bill regarding the oversight of immigration officers in Northern Ireland, we are deeply concerned that there could be a significant period during which protections were afforded to individuals in England and Wales but not in Northern Ireland. I am sure the Minister will agree that that is not a satisfactory situation, and it could potentially engage Article 14 of the ECHR prohibiting discrimination in the enjoyment of Convention rights. I beg to move.

I thank the noble Baroness for having introduced the subject of Northern Ireland somewhat earlier than Clauses 46 and 47 in Part 3, to which we will come in the fullness of time. Since she has done so and I cannot be certain that I shall be standing in the Chamber when we reach those amendments, I will ask the Minister one question pertaining to the border between Northern Ireland and the Republic, which has been the subject of two exchanges for which I have been present over the past year.

In the first of them, I cannot recall whether the Minister was sitting next to a colleague who was making a Statement or whether he was actually answering questions himself, but the noble Lord, Lord Kilclooney, and I were engaged in asking, because of the possibility of people who were hostile to this realm entering the United Kingdom by the back door across the border, whether conversations were going on with the Republic of Ireland about strengthening that border. The answer that we received on that occasion was, yes, there were such conversations going on. I recall, in a much more recent exchange, the Minister saying that there were not now conversations going on, which may have been out of context. If he were able to clarify exactly the status of the relationship with the Government in the Republic on that subject, so much the better.

I shall answer the question of the noble Lord, Lord Brooke, first because it is a short one. The answer is that we are having ongoing discussions with the Irish about the border, intelligence sharing, risk and things like that. We have been deeply involved in that, not least because of the CTA work. That is continuing.

On the amendment tabled by the noble Baroness, Lady Miller, the Government are committed to ensuring that consistent and independent oversight is in place throughout the United Kingdom. As such, we fully agree that oversight in Northern Ireland should be provided by the Police Ombudsman for Northern Ireland, in line with the oversight provided in England and Wales by the Independent Police Complaints Commission. Although the Government have invited the Police Ombudsman for Northern Ireland to take on this oversight role, I am afraid that discussions with the ombudsman regarding his suggested role are still in the early stages.

Officials have been working with the Northern Ireland Office and it is intended to take this matter forward now in the immigration simplification Bill that is due to be published at the end of this Session. It has been decided not to introduce the changes in this Bill because we want to have those discussions completed and want to build on the initial work and allow enough time for scrutiny and discussion to ensure that we get it right. Until such oversight by the Police Ombudsman for Northern Ireland is introduced, where a complaint involves criminality this will continue to be investigated by the police, whereas for complaints regarding staff misconduct it will be for the border force’s Professional Standards Unit to investigate.

We are proposing that, through the immigration simplification Bill, the police ombudsman would have oversight of serious complaints, incidents and conduct matters in relation to the exercise of specified enforcement functions by all border force staff and contractors—namely, immigration officers, officials of the Secretary of State, customs officials, contractors and the Director of Border Revenue.

While oversight of complaints, incidents and misconduct matters in Northern Ireland is of equal importance to the rest of the UK, arrangements to secure sufficient oversight have been initiated more recently than those with the IPCC. When the Government first approached the IPCC in order to secure oversight in England and Wales, activity in Northern Ireland was at a very low level, with officers from England carrying out ad hoc enforcement operations in this area. However, activity has since increased and there is a proposal for a permanent office to be opened in Belfast. On this basis, discussions are progressing with the Police Ombudsman for Northern Ireland to ensure that adequate oversight is in place.

It is important to note that, although activity has increased in Northern Ireland, it is still relatively low level. For example, I think there are about 18 officers involved in enforcement work there at the moment. I hope that the noble Baroness feels that answers her question enough to be able to withdraw her amendment.

I thank the Minister for that reply, which, in a nutshell, was that progress is being made slowly, which is good. At least some progress is being made.

I am sure that we all hope that we will get to the simplification Bill. We wish we had that before us rather than this Bill. It is worrying that we have to wait until that to resolve this issue.

Before I withdraw the amendment, would the Minister comment on the IPCC in Scotland? I realise that that is not part of the amendment and understand if he will want to write to me on that. He has studiously mentioned England and Wales—although I did explain, in speaking to my amendment, that many of the removals were to Scotland. However, I realise that that was not part of my amendment so if he would like to write, that would be quite satisfactory.

If I may, I will write to the noble Baroness about that. I find that I get in terrible trouble when I try to speak off the cuff about Scotland.

I would be very grateful if the Minister would do that. In the mean time, I thank him for his helpful reply on the situation in Northern Ireland and beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Clause 29 agreed.

Clauses 30 to 32 agreed.

Clause 33: Powers to modify enactments

Amendment 40

Moved by

40: Clause 33, page 24, line 28, at end insert—

“( ) Any order made under this section must be approved by both Houses of Parliament.”

This small amendment would ensure that there is proper scrutiny of the actions of the Secretary of State. The provisions at page 24, line 28, enable her to make orders that are “incidental, supplementary or consequential”; this also applies to future Acts of Parliament. If any modifications are to be made, we consider that these should be made through an affirmative order.

We agree with those remarks. It is a point that both opposition Benches make frequently about almost all legislation containing so much secondary legislation.

The Government agree that the order-making power under Clause 33 should be subject to the affirmative resolution procedure, given that an order under Clause 33 may amend primary legislation. Clause 35(4)(e) provides for that. Accordingly, no order made under Clause 33 may be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. I hope that the noble Baroness will agree that her amendment is unnecessary and feel able to withdraw it.

Amendment 40 withdrawn.

Clause 33 agreed.

Clause 34: Power to make supplementary etc. provision

Amendment 41

Moved by

41: Clause 34, page 24, line 40, leave out subsections (4) and (5)

The government amendments in this group make changes to Clauses 34 and 35 of Part 1. The changes are required as subsections (4) and (5) of Clause 34, which made certain provision in relation to Scotland, are not necessary. On analysis, it has been agreed that the changes that it was envisaged would be made under these clauses would be for reserved purposes and, accordingly, for United Kingdom Ministers. It follows that, if Clause 34(5) is to be deleted from the Bill, then Clause 35(7), which made provision in respect of an order made by the Scottish Ministers, should be removed as well.

Further consequential changes to Clause 35 are also made to reflect the fact that only the Secretary of State will have an order-making power under Clause 34. The Government and the Scottish Government have agreed that these changes should be made, and I hope that this Committee will now approve these amendments. Scottish Ministers are aware of the proposed changes and welcome them.

Amendment 41 agreed.

Clause 34, as amended, agreed.

Clause 35: Subordinate legislation

Amendments 42 to 44

Moved by

42: Clause 35, page 25, line 24, leave out “made by the Secretary of State”

43: Clause 35, page 25, line 30, leave out “made by the Secretary of State”

44: Clause 35, page 25, line 37, leave out subsection (7)

Amendments 42 to 44 agreed.

Clause 35, as amended, agreed.

Clause 36 agreed.

House resumed.