Committee (1st Day)
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) 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.(4) Bodies to be consulted under subsection (3)(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.”
This first part of the Bill is one of its most important aspects and my amendments make it clear that we intend to probe the Government’s proposals carefully. I am bound to say that this is one of the most opaque bits of legislation that I have read for some time. Before we come to the purposes of Part 1 and of the Government’s legislation, our Amendment 1 proposes to amplify further what procedures we believe there should be for protecting our borders.
At Second Reading, I told the House that I intended to,
“table an amendment in Committee to have a border police force that will have all the necessary powers to arrest, detain and prosecute offenders”.—[Official Report, 11/2/09; col. 1134.]
This is not a new line for my party to take. For several years now, we have proposed and recommended that the force at the border should be unified, and I make no apology for returning to that attack. Part 1 of the Bill proposes—I am sure that the Minister will say more about this—to bring together immigration and Customs and Revenue. The gaping hole left is that the police, and thereby the security forces, are not involved in this force or in protecting our borders. It seems to us inconceivable that that should happen and that the Government should go to all the trouble of producing this rather miserable little Bill to try to do something that does not complete the whole circle.
In 2007, my noble friend Lady Anelay introduced a similar clause. To save me having to think about it, I shall just quote what she said, which lays out quite clearly what we are trying to do. She said:
“My amendments will create a UK border police force which we believe could more effectively police and safeguard our borders than has been the case in recent years. There are currently six agencies dealing with our borders; it is clear that the system is unsatisfactory. We seek to bring those disparate groups of people together so that they can be managed more coherently and the powers can be shared”.—[Official Report, 2/7/07; col. GC 32.]
It is not only members of my party who believe that the police are a major absence from such a force; that position is supported by others. The noble Lord, Lord Stevens, conducted an inquiry for my party some time ago—its findings have been published—in which he supported the involvement of the police.
What is the Government’s objection? Why are we going to spend this afternoon going through 36 convoluted clauses to come out at the end with a force that combines Customs, immigration and Revenue but leaves those officers having to contact or bring in the police at any stage of their inquiries, rather than having the police as an integral part of what they do? The Government have made great play of the fact that our borders need to be secure; we support that. It is essential that we have borders that are not porous to crime, drug trafficking and trafficking of people or illegal immigrants and that there are proper regimes to deal with that. Given that those measures are not there as a whole, we will waste three days or so putting together something that is inadequate.
It is essential that we discuss this clearly and cogently today and find out from the Government why they are not prepared to commit themselves to a dedicated border police. It is beyond peradventure that this will have to be revisited and that yet another piece of borders and immigration legislation will be required, which would be the ninth or 10th that we have had since 1997. A border police force would be able to combine the powers of the police, Customs and immigration in a single dedicated force.
We have also included with our amendments stand part debates on the other clauses in Part 1. That is to give Members of the Committee the opportunity today also to discuss the proposals for what the Government are pleased to call their integrated force. I beg to move.
Amendment 2 (to Amendment 1)
2: Leave out lines 4 to 10 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.”
We share the ultimate objective proposed by the noble Baroness of a unified border force, but our attitude to the Bill is somewhat different. We look at the crossing between UKBA and HMRC as an important step towards the ultimate goal that we share with the noble Baroness, so we welcome the intention behind Part 1 of allowing immigration officers and officials of the Secretary of State to exercise revenue and customs functions. As she implied, the lines of this debate are bound to follow those of the one that we had on similar amendments to the UK Borders Bill in 2007 at both Committee and Report stages. I do not intend to repeat the arguments that were used on both those occasions; I just want to highlight the differences between our ideas and those of the Tories, which have not changed substantially since that occasion.
The Liberal Democrats’ policy is that an integrated borders force would cover the border functions of the police as well as the functions of the UKBA and HMRC, whereas the functions of what the Conservatives describe as a UK border police force would extend to a range of other matters, including the detection and removal of illegal overstayers and the investigation of employers of illegal immigrants. The suggestion that the border force be given these functions, which are essentially part of the normal duties of the police—although they may require close liaison with UKBA and possibly others on the same lines as a result of the order-making power proposed in the Conservative amendments—indicates some confusion in Tory thinking about where the boundaries of the United Kingdom are located.
We maintain that the arguments in the Home Affairs Select Committee report HC 163, which was published in January 2001, for including the police in a force whose activities are confined to the borders are still valid. The report highlighted the ways in which the division of responsibilities at the ports foster inefficiencies, because the UKBA, HMRC and the police operate in slightly different ways, depending on the skills of their staff, their objectives and priorities, their equipment, their facilities and their legal basis. The report says, for example, that although larger ports such as Dover have Customs, immigration and police on duty, at the smaller ports there may only be a single police officer whose powers as an examining officer are confined to those in Schedule 7 to the Terrorism Act 2000. Those powers may be extended to an immigration or customs officer. The police do not have reciprocal powers, however, under the relevant immigration and customs legislation.
Nevertheless, we are realistic about the prospects for dealing with this in the current Bill for two reasons. First, there would need to be full consultation with the Scottish Parliament, which has authority over policing in Scotland and thus at the UK’s borders in Scotland. Secondly, although the noble Baroness has cited the report of the noble Lord, Lord Stevens, we have not consulted ACPO or the Association of Police Authorities, which would need to be given details of how the police at the borders would fully exchange roles with the UKBA and HMRC so that they could make useful suggestions in that regard. In 2007, the noble Lord, Lord Bassam, told your Lordships that ACPO was uncertain about the benefits of the single agency. However, we know that it has given the matter further thought since then. Could the Minister bring us up to date on ACPO’s thinking and on any discussions that the Government have had with ACPO on Part 1 in particular? Can he at least tell us how the police at the borders can work more closely with HMRC and UKBA under existing legislation and whether the Government have any further thoughts on how to overcome the problems that were identified by the Home Affairs Select Committee before we get to the ultimate ideal of a unified border force?
In supporting the amendment, I refer to my service in the police for over 30 years until about 12 or 13 years ago. I have seen enough of multidisciplinary groups trying to work together to recognise that they frequently meet with some success. However, based on the experience that I have alluded to, I have no doubt that in any grouping you are much better off if you have a number of things in place. That is pertinent to what we are about to discuss. You need one clear chain of command; you need one clear line of responsibility, both up and down within the organisation; you need one very clear line of accountability to one identifiable person, which in this instance is presumably the Home Secretary; and it is clear that you need one set of powers that can be discharged throughout the organisation—in this discussion we are considering powers that would include, among other things, those of search, arrest and detention.
I have always advocated that in this example the above powers should be discharged by one all-inclusive and all-embracing agency. I checked the ACPO position as recently as the end of last week. Its firm view, which I understand has been communicated to the Government, is exactly in line with what I have just outlined. ACPO would support an all-embracing, in-totality organisation to cover our borders. Not surprisingly, the association has reported that two or three of the 43 forces in England and Wales are less than supportive of the view. Understandably, perhaps, they are unwilling to give up their quite considerable involvement in the policing of ports and airports. To some extent, although I cannot gainsay it myself, I am given to understand that this is as much a financial point as anything else in that the forces would lose their budgetary base as a result. That could be addressed in other ways. But the ACPO view is clearly stated: it would like an all-embracing border security force or agency that involves the police as one of the constituent parts.
This morning, your Lordships’ Sub-Committee F of the European Union Committee took evidence from the Minister of State for Home Affairs. She said—admittedly in a different context, but in one that is tangential to this—that the Government’s policy is to maintain strong borders. That statement is self-evident and flows through much of what we are going to discuss. However, I think that there is a nettle to be grasped. If we are going to maintain strong borders, it is wrong to try to brigade together disparate groups and treat them, if you like, as chalk and cheese. That fosters divisions within the organisation, invites partisan and protectionist attitudes and allows issues to fall between the cracks.
In papers that I have been shown and which I believe have been communicated to the Government, ACPO recommends that the force should be headed by a police officer. I am not so sure about that. If you take a series of what at the moment are separate organisations and roll them together into one, the early stages are important, so it might not be the best thing to have a police officer in charge. However, if counterterrorism is as important as we all believe, perhaps the first appointment could come from the police. I leave a question mark over that, as I do not necessarily follow that element of the ACPO argument.
We may touch on the key duties later, but let me cite the recommendations made in the Stevens report, which I endorse. They are to provide effective counterterrorism measures, combat other serious and organised crime, prevent the importation of illegal drugs and illegal weapons, prevent smuggling in order to protect the UK tax base, prevent illegal immigration and cover issues touching on environmental control and protection. That is quite a long list but it is by no means daunting. However, to discharge it all, if one accepts that as the premise, I believe—here I shall repeat myself, but only briefly—that one must have a unified command and a unified composition within that command. One must have, of course, unified technology, including IT, and one must have, importantly, unified conditions of service so as to attract and retain the best-quality personnel within it. A move to that obviously could not be taken in one gigantic step; one would have to move through a series of rational steps towards a clear and well defined goal.
I shall not weary the Committee further. I think that I have said enough to indicate why I support the amendment: we should have an all-embracing border agency or border force, which should involve all the agencies, including policing.
I support the Liberal Democrat amendment which is far more positive than the amendment proposed by the Conservative Party. Our amendment states that the primary function should be,
“protecting UK borders”.
That, above everything else, should have first place in a list of functions. The Conservative amendment contains a lucky dip of the various functions that might be attributed to the border force, so let us adopt the positive, reasonable and rational development contained in the Liberal Democrat amendment.
Subsection (2)(d) of our amendment requires that the border force should have the function of,
“maintaining and improving a safe, ordered and secure environment in ports”.
That is not in the Conservative amendment, but it deserves its place in the Bill.
According to the Conservative amendment, the first function of the border force should be,
“detecting and removing illegal overstayers”.
Surely that is a kind of tabloid headline function to “send them all home”. But that is not what the Bill is about. We need a civilised approach to a difficult problem and I suggest that the Liberal Democrat amendment is superior in its approach and presentation to that contained in the amendment proposed by the Official Opposition.
My noble friend Lord Avebury gave a good explanation of our position, which has just been reinforced by my noble friend Lord Roberts. I should like to ask the Minister a couple of questions. The first question concerns the very real threats to this country that are almost never talked about. The Minister is tasked to deal with terrorism issues which, quite rightly, are in the forefront of his mind, but threats to the general population can occur through health risks and through animal health risks. If we were back in the years of foot and mouth, that issue would be at the forefront of noble Lords’ minds in this House when debating borders and border forces. How will the new force be more effective in dealing with such issues? I hope that it will be because there has been a continual failure to deal with the smuggling of meat products, which was one of the issues that led to foot and mouth.
My second question concerns the risks that a physical border is unable to deal with: that is, issues around e-crime and e-terrorism. As the Government, rightly, physically strengthen our land borders with personnel to deal with particular issues, what effect will this have on pushing crime and terrorism on to the internet; for example, by encouraging terrorists to go down the completely different route of cyber attacks as opposed to physical attacks? While these attacks may not threaten life in the same way, the results economically could be devastating to this country.
Finally, I would be sad if the effect of this was to conflate immigration and asylum-seeking issues with criminality as a matter of course. We must strongly resist that route.
I am not at all clear how either of these two amendments would make for a distinct boundary between the proposed new police force and the existing police forces. Amendment 2 is an improvement on Amendment 1, but even that contains paragraph (c),
“preventing and detecting human trafficking”.
That can occur anywhere within the country. It does not always emerge at the ports of entry. It seems to me that there will be a lack of clarity and a lack of a clear chain of command. I am very doubtful about both amendments.
I very much support the establishment of a UK border police force and in particular I support the speech of the noble Lord, Lord Dear.
Taking up the point made by the noble Lord, Lord Hylton, I should have thought that there would not be a great deal of difficulty in dealing with the preventing and detecting of human trafficking by agreement between police forces, because, as he says, they are to be found from time to time in different parts of the country. One of the major concerns of course is at the ports, particularly at the airports.
There is currently very good work being done by small groups of police. I am happy to say the Metropolitan Police are doing very good work with Romania that is funded by the European Commission. That is excellent work and I cannot see that it would be very difficult if that went either to the border police force or stayed with the special group of the Metropolitan Police by agreement. Work is done across police forces already and to have it in this UK border police force would not seem to me to prevent existing police forces from doing this work.
I ought to declare an interest, which I have declared before, as a vice-president of the All-Party Parliamentary Group on Trafficking of Women and Children. One of the reasons why I support this UK border police force is to have a police force which is, as part of its work, committed to dealing with this very evil trade of trafficking.
It does cross my mind that the Government have created a very serious omission by not having a border police force. I find it very sad that it is not in the Bill, but it may be that it will be said that it will take some time to achieve. The fact that it may take some time for it to be set up and be operational does not seem to be a good reason for not having it in place as part of the law, although it may take time for it actually to be up and working. What is sad about the Bill is that it does not even contemplate the possibility. That is a sad reflection on an aspiration that should be up front at this moment.
I am not sure whether I support Amendment 1 or Amendment 2. It is rather sad that the two parties opposite have not got together to put forward a composite arrangement for the UK border police force, because what comes in each of them seems to be very good common sense. What is necessary is to have the police force. I find it sad that the Government have not thought it necessary to do so.
Before the Minister responds, I had hoped that some of the Members of the Committee would widen out the debate into the question of clause stand part. Will the Minister give us some clear indication of the Government’s view on their proposals, as laid out in Clauses 1 to 36? With regard to the customs powers and the revenue powers and people that are being passed down, it is not clear from the Bill whether they will be one and the same person and whether the powers will be absorbed into a single power so far as the officers are concerned, nor how the Government envisage this aspect of their proposals being carried out. In moving the amendment about the police force, I also hope to scoop up the other aspects of immigration, customs and the revenue, which are a main part of what the Borders Agency should be doing.
I agree with the noble Baroness that we should be discussing whether Clauses 1 to 36 should stand part, as well as the first two amendments that concern the border police force.
I want to make it clear that we accept in principle that UKBA officials should be able to exercise all the revenue and customs functions that are related to HMRC operations at the borders. That is my response to the noble Lord, Lord Hylton; when we are talking about human trafficking, we are talking about its detection and prevention at the borders, not within the United Kingdom as a whole.
It is a corollary of having a unified border force that we have these exercises of functions by UKBA officials of what was formerly the sole prerogative of HMRC. General customs matters, which are defined in Clause 1 and exclude matters relating to tax in particular, will be the proper responsibility of designated immigration officers under Clause 3. The designated officer would have the same powers as an HMRC officer with regard to general customs matters, and those include the functions listed in any other enactment except those listed in Clause 1(2). This gives me the opportunity to say that we have concerns about Clauses 16 and 17. That is why we put our names to the amendments leaving out those clauses.
I do not know whether the Committee will have seen an article in the Guardian today quoting a paper written by the former Whitehall security and intelligence co-ordinator, Sir David Omand, in which he says that the security services will have to be given access to a sweeping range of personal data. There are already enormous databases, such as the passenger name records that have to be kept by airlines, that include millions of innocent people. The sharing of personal data between HMRC and UKBA may be a comparatively small step towards Sir David’s ultimate goal, but it is Parliament’s duty to build in ever more powerful safeguards as state agencies accumulate and share increasing amounts of potentially sensitive data about individuals. We would like to hear something from the Minister about how that is to be achieved in the Bill.
I should make clear at the outset that in speaking to this group I do not regard the decisions on the various clauses in this part to be consequential on any decision on Amendment 1. I am, however, sure that it has been helpful for the Committee to allow a wide debate on the issues contained in Part 1 by having them grouped together in this way.
I am very grateful to the noble Baroness, Lady Hanham, for her explanation of why the Opposition have tabled this amendment, and to the noble Lord, Lord Avebury for his useful contribution. It is good for us to make our position clear from the start as the Government did in advance of Second Reading debate. There is a wide range of options from a gargantuan organisation that combines the UK Border Agency with thousands of police officers and parts of other agencies to an entirely police-based body which will work in parallel with the UK Border Agency.
The amendment tabled by the Opposition is similar to the one spoken to on 9 October 2007, for what was then the UK Borders Bill. From a brief comparison between the two, I can see that the Opposition’s thinking has not been spelt out in any greater detail. That is a shame when the Government have put forward solid and reasoned proposals for the functional and management changes that we need to strengthen the arrangements for immigration and customs at our borders. These changes are ready to be implemented as soon as the Bill is passed.
The new border force has already been stood up and started in its shadow form since April 2008 and is waiting for these things to be put properly into force. I am sure that the House will want to weigh the benefits of immediate, well-grounded and well-planned change against a much more generalised aspiration for a long-term future.
I know that the House will agree that the protection of this country’s borders is of vital importance to our national security and the well-being of our citizens. That is why the Government have already taken steps to strengthen and integrate operational activity at the border, bringing immigration and customs functions together in a way which is properly connected to local policing. This work started out as a discussion in July 2007, in a Statement by the Prime Minister, just after the attacks on Tiger Tiger and Glasgow airport. One issue that I looked at was border security, with a resultant Cabinet Office study, Security in a Global Hub.
Abroad and at ports and airports up and down the country, border force operational staff are working on a daily basis to protect this country from those who traffic people. Trafficking of drugs, the import of dangerous guns, knives and wild animal meats—and I have some statistics on that—were also discussed this morning. At the same time, those staff provide a welcome to tourists and business travellers and a service to businesses that import goods and drive our economy. Far from what the noble Baroness, Lady Hanham, has said, the police are already fully involved. I will come onto that in more detail later.
It might be useful initially to provide some examples of the way in which the agency is already delivering real and practical improvements, making our nation and its people safer, since it was stood up, in shadow form, in April 2008. There has been flexible deployment of our 9,000 border guards to search for and seize record quantities of Class A drugs, dangerous weapons, people hidden in trucks and trailers, and an estimated saving of about £150 million to tax revenue. We have begun cross-training 2,600 frontline officers in screening more passengers travelling to and from the United Kingdom to reduce waiting times over peak summer periods.
There is a new deal for port operators through service level agreements that reduce duplication, improve the experience of customers and make us more effective. Police expertise has been embedded at both the strategic level—and Chief Constable, Roger Baker, is a member of the executive board of UKBA—and at the operational level, with more than 280 police officers seconded to UKBA in local immigration teams up and down our country.
Similarly, UKBA staff are embedded in police countertrafficking teams at Heathrow and Sheffield. Our intelligence capability has been linked through the national border targeting centre—where police and UKBA staff screen passenger information—and in police counterterrorism and organised crime units. Our enhanced port security teams have increased significantly the number of referrals to the Security Service following the delivery of counterterrorist training and online updates. Cutting-edge technology has been used to screen more than 3.5 million vehicles for the illegal importation of nuclear and radiological materials.
The Government are not against making structural change in the area of law enforcement and policing where there is a compelling case to do so. Take the example of the Serious Organised Crime Agency, which brought together the four agencies which had hitherto dealt with organised crime—the National Crime Squad, the National Criminal Intelligence Service, part of HMRC and part of the Immigration Service. A Cabinet Office review had identified some overlap of functions and unclear lines of accountability between these agencies. A White Paper and a substantial Bill followed, leading to the establishment of SOCA in April 2006, which was designed to be more than the sum of its parts.
This is relevant to the present debate. The establishment of SOCA involved a huge amount of work, but it was a much more straightforward process than establishing a single UK border police force. SOCA was about drawing together four national agencies. The border policing picture is significantly more complicated; I will return to this complexity point shortly.
In other important areas relating to public protection, we have not pursued major structural change. Take, for example, counterterrorism policing. We have not established a national counterterrorism police force, nor do we intend to. Our approach is different: working with the leadership of the police service, we have supported and underpinned, with record investment, the development of what has become known as the police counterterrorism network. This comprises regionally based specialised police units, known as counterterrorism units and counterterrorism intelligence units, which are increasingly integrated and co-ordinated at a national level. The network is providing the benefits of a national enterprise without, crucially, this becoming dislocated from local policing or disturbing the critical settlement of accountability for policing in this country.
Last year’s Green Paper on police reform consulted on what model of policing, working alongside the UK Border Agency, would work best in terms of increasing security at our borders and improving public protection. That consultation did not throw up a consensus view among the key stakeholders on a preferred model for policing at the border. The formal stated position of the Association of Chief Police Officers was in favour of a single national border police service. The noble Lord, Lord Avebury, asked that question, and the noble Lord, Lord Dear, referred to it. But ACPO acknowledged that this would need considerable further planning and development as a model and would have the potential to bring with it significant additional costs. The noble Lord, Lord Dear, was wrong about it being an all-embracing agency. ACPO’s formal response favoured a single national police service, working alongside the border service.
The Association of Police Authorities took a completely different view. It was very strongly opposed to the creation of a single national border force. In my brief period as a Minister, I find it interesting how often the views of ACPO and others differ on these issues.
We have reflected very carefully on the thoughtful engagement on this issue from our key stakeholders. As I have said, the police are already fully involved and I have referred to a number of areas where they are. We acknowledge that more can be done to improve our border security—as always, more can be done. We are therefore working with the leadership of the police service to develop an even greater enhancement of our already close working arrangements, of the collaboration between police forces and between the police and the border force. There is, coincidentally, a day-long workshop happening today, involving the police service, the border force, Home Office officials and others to work on proposals for making even more practical improvements.
Our intention is to pursue a phased approach to this significant enhancement of our border security, concentrating first on counterterrorism. There are three elements to this: first, exploiting the increasingly integrated approach being brought about through the development of the police counterterrorism network, about which I spoke a little earlier, and its links with local Special Branch; secondly, the enhanced national co-ordination of specialist policing assets; and, thirdly, strengthening even further the increasingly good working relationship between the border force and the police service, including through more joint working on operations and intelligence sharing.
I have been listening with fascination to the Minister’s thesis. Why are the police still being left to one side? The purpose of the Bill as we understand it is to ensure that all revenue, customs and immigration functions are able to be carried out by particular officers—some may be separate, some may be not. It is clear that that is the direction that the Government want. The police are still being left to one side despite what the Minister is saying.
I disagree with the noble Baroness. I was hoping to get across how closely the police work with the border force in every area and at every level—strategic, operational and tactical. You do not have to be formed up as a unit to achieve those things. We are very clear that it is into the area covered by this Bill that we should put our current energies and finite resources of people and money. It will provide the advantages of robust collaboration, but without the drawbacks of pursuing the significant structural change that would be involved in establishing a new national police force. Those drawbacks would be substantial. I shall come to them shortly, because it is important to explain these things and talk them through. Just on collaboration, we have proposed measures in the Policing and Crime Bill, presently in another place, which clarify and strengthen the legal framework for police collaboration and which, as I understand it, have received broad support.
As we have heard already today, there are very different views on border policing issues, but our bottom-line judgment is that we have not yet seen a robust, compelling case for the operational benefits to be derived from creating a new national border police force, such as would outweigh the potential risks and delays involved. The case for fundamental structural change has not been made.
Having said that, and having set out what the Government are doing to improve our border security, I should like to spend a moment or two exploring the complexities around the amendment proposed. It is a serious and complicated proposal of which we need to consider the detail. There are significant issues which are simply not addressed in the amendment. They go to the heart of what is practical and what can be done.
On the functions of the proposed new force, I am slightly quizzical about the fact that although the amendment tabled by noble Lords proposes the establishment of a UK border police force, it does not ascribe explicitly to that force any of the three broad elements of policing which take place at the border—namely, Special Branch, which is responsible for national security and counterterrorism; protective security, providing policing to secure the infrastructure of ports; and general policing, dealing with crime and disorder. I am not clear either about how many functions of the UK Border Agency or the border force the proposed force would absorb, what would be left and what it would form in terms of a coherent set of responsibilities—the noble Lord, Lord Hylton, I think, touched on this concern.
On personnel, there is no detail on who would make up the border police force, from where they would come, what powers they would have, and what the terms and conditions of the staff would look like. We need to be clear that people are at the heart of this.
The amendment is silent on leadership. Who is in charge of the force? Is it a chief constable—the noble Lord, Lord Dear, touched on that. From that discussion flow some crucial questions about accountability of the force. To whom is the new force to be accountable? Is there to be a new, bespoke police authority-type body? What about the constitution? How are priorities set? Who monitors outcomes and progress? Are noble Lords opposite planning on putting key immigration functions into the hands of a chief constable? Would that mean a chief constable reporting directly to the Home Secretary, including on operational matters? Where does that leave the debate on the politicising of policing?
Is there an inspection function of the proposed new force? What about a mechanism for people who would like to complain about their treatment by it? Does it come under the ambit of the Independent Police Complaints Authority?
There is also the devolution question, as was raised very accurately by the noble Lord, Lord Avebury. There is a major issue here. There are 52 territorial forces in England, Wales, Scotland and Northern Ireland, and the picture is very complex. Policing in Scotland is a devolved matter, and I can see huge complications. How will it work? What will happen in Northern Ireland?
Finally, we need to consider the crucial question of funding and who will pay for the establishment of a new force. Would it be from top-slicing of the general policing grant—I think it probably would have to be—by carving out money from existing specific policing grants, or by some other means? Has there been any discussion with the police authorities about this? When one day long in the future the party opposite comes into power, I shall be fascinated to go through in some detail the 300, 400 or 500 clauses required for this sort of proposal.
I make no apologies for raising these issues. My intention in doing so is not to be “clever” but to illustrate just how complex this area is, because we have been wrestling with it. As a Government, we are in a position of having to work through how practically to bring about change and make improvements in public services. We are making the nation safer already with a stronger border and joined-up border force, and this Bill reinforces what has been done already and what needs to be enacted to get the full benefit and effect. We have a clear way forward for our border force and for its relationship to border policing, which will certainly enhance public protection and security. The case for fundamental structural change in terms of creating a UK-wide border police force has not been made out. Even if it could be, the present proposal leaves so many questions unanswered as to make it unworkable as an immediate practical proposition. Part 1 of the present Bill, on the other hand, gives us a well grounded, practical basis for building on the substantial progress that we have already made. I hope that the House will agree that this is a substantial bird in the hand, which we should not put at risk for the sake of a flash of colourful feathers in a rather ill defined bush.
The noble Baroness, Lady Miller, raised the issue of e-crime. She is absolutely right that this is an area of great concern and worry, but we have done a lot about it recently—we have now formed an e-crime unit. More broadly, the newly formed National Security Secretariat, which I have set up in the Cabinet Office, addresses the key issue of cyber-security, with a number of papers tackling that matter. People are pushing on there; it is becoming a much greater worry.
I said that I would talk about the smuggling of meat. The border force will have customs powers to tackle that. We have actually had some success since the force was established; something in terms of 238,000 kilogrammes of products of animal origin have been picked up—things that should not have been brought into this country—which is quite staggering.
Mention was made of an article by Sir David Omand about data. We make a proposal on how data will be looked after, as we see that as very important. Sir David was being quoted with reference to the IMP and the IMP consultation document. The reason why we produced such a document is that this is such a significant issue; we need to look at it very carefully and get it right. One of my concerns is not so much about government, because we are scrutinised and we take it seriously. Sometimes I get concerned about how much data on people are flowing around privately, whether on Twitter, Facebook or whatever—and even when people use their credit cards. Some of those things I find quite worrying.
I turn to the question of clauses stand part. I know that this response seems rather long, but the noble Baroness, Lady Hanham, was right that I should address those clauses and go through them. I shall do so in some detail, which I hope will give some clarification.
Clauses 1 to 5 give the Secretary of State the power to exercise general customs functions concurrently with the commissioners. Clause 1 specifically prevents the Secretary of State from exercising any of the revenue functions of the commissioners or HM Revenue and Customs and any of the commissioners’ non-revenue functions that are not relevant to the UK Border Agency’s role, such as the work of HM Revenue and Customs inland. We are pulling part of HMRC out, and she should not be responsible for any of that work inland. Clause 2 enables the Secretary of State to make an order to amend the list of matters specified in Clause 1(2) that are considered general customs matters for the purposes of the Bill and to make any necessary consequential modifications to other enactments.
Clauses 3 to 5 set out the arrangements by which functions relating to general customs matters will be exercised by the Secretary of State’s officials. In effect this will allow the Home Secretary to designate immigration officers and any other of her officials as designated general customs officials. Later, I shall expand on the detail of what exactly that means.
On Clauses 6 to 8, as I have explained, customs functions will not be vested in the Secretary of State. By convention decisions on tax liability, including customs duties and tax administration generally, are kept at arm’s length from Ministers. The Bill therefore puts in place a different arrangement for dealing with customs revenue matters than that relating to general customs matters. While the general customs functions set out in Clause 1 are vested in the Secretary of State and designated general customs officials, Clause 6 creates within the Home Office the position of Director of Border Revenue. The customs revenue functions of the UK Border Agency will be vested in the director and those customs revenue officials will be designated to her. Clause 7 sets out what these revenue functions are and Clause 8 enables the Treasury, by order, to add to, remove or modify the list of the director’s functions.
Clause 9 enables the Director of Border Revenue to delegate his or her functions to allow for operational flexibility. In practice most of the director’s functions will be undertaken by officers of the Border Agency under the designation arrangements set out in Clause 11. Only those designated officers will be able to exercise the coercive powers currently relied on by officers of HM Revenue and Customs at the border for law enforcement purposes.
Clause 10 requires that the Director of Border Revenue, in the exercise of any of her functions, and any person to whom such functions have been delegated, must comply with any directions of a general nature given by the Treasury. This reflects existing provisions in Section 11 of the Commissioners for Revenue and Customs Act 2005, which require the commissioners to comply with any directions of a general nature given by the Treasury. While this power enables the Treasury to make directions relating to the Director of Border Revenue’s strategies, critically, it does not permit Treasury directions to be issued in relation to day-to-day or operational decisions. Clause 10 also requires the director to act in accordance with the policies of the Commissioners of HM Revenue and Customs. This includes the application of any concession published by the commissioners and any interpretation of the law issued by the commissioners. This requirement will ensure that there is consistency in the administration of taxes between HM Revenue and Customs and the UK Border Agency.
Clauses 11 to 13 set out arrangements for enabling the Director of Border Revenue to designate officials for the purpose of exercising functions and powers relating to customs and revenue matters.
Because of the way this is being done—this is not at the Government’s insistence; I think it is at ours—we are skipping through the detail of what we need to find out. The Minister has given the broad outline of what the clauses mean but I want to get to the bones of this and the questions that I have asked on a couple of occasions. As I understand it, some of the powers of Her Majesty’s Revenue and Customs, in terms of revenue and customs, are being handed to the Border Agency. Not only are some of the powers being dealt with in that way but presumably a number of the officials will also be transferred. As I understand it, at the moment there is no link between what a revenue official does and what a customs official does. I further understand that neither of them has any idea what an immigration official does. However, the Bill proposes that these all come together and suggests that appropriate training will take place. However, if I had expertise in revenue, how could I suddenly become an expert in customs matters and immigration matters if I was obliged to undertake all those things myself? Or, is this just a device whereby the revenue officials come into the border agency, the customs officers come into the border agency and the immigration officers are already there? Do those three groups continue to carry out the duties that they would have been carrying out anyway?
That is the nub of this; what will these animals look like? When you come into the country and are accosted by an official from the border agency, will you know that they carry the powers of customs, immigration and revenue all together, or will a customs officer have to call in the revenue people, if that is appropriate? We need to unpick this and I say with great respect that the Minister is not doing that. We have had a sort of Second Reading review of the clauses, but we are now into the meat. I should be grateful if he would get into the meat and perhaps we could have a discussion as to what these officials will look like, what their responsibilities will be and who will be responsible for them.
I am sorry if I was going into too much detail on some of these clauses. Rather than drilling down on this, the point made by the noble Baroness was rather broader and I shall try to answer. Effectively, we are getting some 4,500 HMRC officers who are working for Revenue and Customs on the borders; they are borders people, not people who work on revenue deep in the UK or deep inland and so on. They are customs-type people who understand customs rules; they are customs officers—the chaps who are normally at the ports and that sort of thing.
The aim is that those people become part of the border force. As I have said, the shadow force has already stood up. That border force includes them and the people who were in the BIA—now called UKBA—and are immigration officers who understand immigration law, and have practised immigration matters and that sort of thing. We have also sucked into the border force people like the visas officers abroad and other little ancillary groups, who together will make the totality of the border force.
Clearly, we wish to use customs officers as part of this border force, partly to obtain more flexibility by having one person who can do customs and immigration, because that will mean that you go through one person and do not have to go through two people to get into the country. This gives us a lot of flexibility in terms of drafting people to small ports, moving people around and those sorts of things. That person will need to have training which enables him to understand and perform the immigration functions. The immigration officers who will be carrying out a customs, HMRC, function will have to be trained to do that. In the detail of the Bill it is stated that we will not do that with every single one of them, because we do not need to, but many will have that dual training to be able to do both things.
Already, for example, the Home Secretary has a responsibility for some general customs matters, including drugs smuggling, weapons smuggling, plant and animal health controls, and so on. We intend to move across to the border agency functions such as collecting duty at the red channel, catching tobacco smugglers and charging duty on postal packets, which are already on the border. HMRC will still do all the deep revenue things within the country, totally separately from any of this.
However, because we do not allow Ministers to get closely involved in those revenue customs matters, we have to set up a division of responsibility whereby the officer in the Home Office responsible for the agency actually has another hat, which allows her to be responsible to the Treasury for these particular matters.
I hope that that clarifies this issue a little more, but the proposal gives us huge flexibility, it lets us use this force more usefully, it means you do not have to go through two checks when going through, it means you can deploy people to small ports, and it means we can use our force. We are not going to cut jobs by doing this; we are effectively increasing the size of our border force and giving it that single focus. I know that some people might think that this is amusing, but the fact that all these people are already in a uniform makes a—
The Minister says that this will not mean that you will have to go through two checks but I cannot quite understand how it is going to work. I see that it would be really nice if it was streamlined, but actually you come in, the UKBA person looks at you, does all your details, looks at your passport, and then you go and collect your luggage, and then you go past the other people. It is not going to be possible to do all that at once with one official, is it?
I speak more in terms of the actual work involved in administration and elsewhere. Generally—I had better be careful what I say about the Customs side—you will very often walk through and there is nobody there, because the arrangements are done in a slightly different way. Such arrangements—whether there is nobody there or somebody there—will be much more joined up. That will make it more efficient, and better; that is what is really behind it.
I am very grateful for the explanation that the noble Lord has given. Immigration officers who carry out HMRC functions have to be designated by the Secretary of State, but the noble Lord has told us that 4,500 HMRC people will be transferred to UKBA—that they will have a UKBA hat on—but that they will not be designated. Why is there no parallel procedure for them?
The officers who come across from HMRC will have to have been cleared, in the sense that the Secretary of State or those people who work directly for the Secretary of State will have said that they have met certain requirements in terms of training and being a correct person for this; there is a list of things to check off, and if those are met, that person is designated. Effectively, both groups are designated—both groups are selected—and you cannot just join the force and automatically go down this route. They are, to that extent, both designated, whether from HMRC or the old BIA.
Can I pick the Minister’s brains a little more about this? I can see that in the future there will be one source of training. People will come into the service and they will be one of these officers, or they may not; they may be Revenue or they may be Customs. In relation to the shadow form that will come rushing in, how long does it take to train a Revenue officer in all that they need to know to run a border, and how long does it take to train a Customs officer to do all of that? Does it take two years or one and a half months? If you come into the service now as a Customs officer, how long does it take until you get to a situation where you are able to deal with these things?
I do not know off the top of my head exactly, but I am sure that I am about to get input from the Box; it must be a matter of months. I say that because the reason we want to get this Bill enacted before the Summer Recess is that we will then be able to have the bulk of the people, or large numbers of them—but not all of them—trained by September or October for this. I have just got the figure: it takes 14 weeks to get a Customs officer trained up on immigration aspects; I hope in a minute to get the other figure. I imagine it takes a similar time to train an immigration officer specifically on those Customs aspects. All they have to learn are the border issues, not the much broader Revenue and other matters, to achieve that.
May I ask one question from a position of what I would call chronological ignorance? It is more than 20 years since I was the Minister responsible in another place for Customs, but during that period there were only about 30 ports of entry into this country—or airports at any rate—which were designated international and therefore had a Customs presence. Within the past 10 years, I have landed at a significant airport at which the only Customs presence was a red telephone on the wall which you could call if you wished. Has that changed in the past 10 years so that all airports are now international? If not, will the Bill produce a situation whereby all airports become international, with a Customs presence, because everyone will be interchangeable?
The noble Lord has hit on a very important area, which is of great concern at times. I always say that we could expend our entire national wealth on counterterrorism, but obviously it has to be based on risk. However, the noble Lord is absolutely right: there are a lot of small ports—small airports and small coastal ports—where very often there is no one to do a check. This will give us more flexibility and allow us, with intelligence-based information as well, to cover more of those ports than we have been able to do. However, I would be wrong if I said that we will cover them all, because we will not and cannot do that, and realistically we should not try to, because it is just so difficult. What we do has to be done on the basis of intelligence; it has to be done with irregularity so as to catch people out; and we need to use other methods to ensure that we ensnare people who are criminal or wish to do us harm in other ways. However, this measure will definitely make us more capable, and is already making us more capable, than we were before.
I was afraid that the noble Lord would ask that. I do not know the exact answer but I hope that I will get it shortly. Is there merit in my going through the various clauses? Would that be useful? I hope that I helped to clarify a little some of the issues that were of concern to the noble Baroness.
I think that I got to Clauses 11 to 13. Those clauses set out arrangements for enabling the Director of Border Revenue to designate officials for the purpose of exercising functions and powers relating to customs revenue matters.
Clause 11 provides that immigration officers and other officials of the Secretary of State who can exercise general customs functions may be designated as customs revenue officials by the Director of Border Revenue. This enables appropriately designated UK Border Agency officials to do everything that an HM Revenue and Customs officer might do in relation to customs revenue matters. This will ensure that officials have the full range of customs powers that they need to be able to deal with any illegal goods, such as drugs or tobacco. UK Border Agency officials will thus be able to exercise immigration and customs functions, both revenue and non-revenue.
Clauses 12 and 13 make additional provision in respect of designated customs revenue officials. Clause 12 mirrors for the designation of customs revenue officials the provisions of Clause 4 in relation to the designation of general customs officials.
The provision that we are making is intended to provide flexibility in the designation of customs officials and to provide any necessary safeguards. Accordingly, Cause 12 allows the director to limit the particular functions vested in an official, or the purposes for which any such official may exercise customs revenue functions in general. This provides flexibility for the designation to reflect the official’s allocated duties. It also ensures that the director must be satisfied that a person is capable and appropriately trained. The noble Baroness, Lady Hanham, made that point at Second Reading and she was absolutely right: they have to be appropriately trained. We are aware of this and we are already going through exactly what the TPs will be to train people before designating anyone as a customs revenue official.
Clause 13 requires that a designated customs revenue official must comply with directions given by the director in the exercise of customs revenue functions. Clause 14 sets out the purposes for which customs information may be used and disclosed, and by whom.
Clause 15 imposes statutory duties of confidentiality in respect of personal customs information and Clause 16 sets out the limited and strictly prescribed exceptions to those duties. The provisions in these clauses apply only to customs information acquired by the UK Border Agency from sources other than HM Revenue and Customs or the Revenue and Customs Prosecutions Office. There is a separate confidentiality framework for the use and disclosure of information provided by HM Revenue and Customs and the Revenue and Customs Prosecutions Office, which is set out in existing legislation including, in particular, the UK Borders Act 2007.
Does the existing legislation also include the Commissioners for Revenue and Customs Act 2005? I was looking at that the other day, as quite a lot of the detail in this Bill relates to it. A huge amount of clauses seem to be relevant to the powers that are being passed over, but the detail does not appear in this Bill. There are no amendments down for Clause 17—there is just the stand part—but the noble Lord, Lord Avebury, has already raised his concern about this aspect of the information that is likely to be passed and the exceptions to that. Will the Minister go a little more deeply into what information this is likely to be and its disclosure? First, the information will be held—it is another situation where we will have a database with a lot of personal information held on it—and, secondly, it will be used on an evidential basis if that is required. The noble Lord, Lord Avebury, might want to expand on his comments. These two clauses carry quite a lot of implications for people who find themselves brought up short by an officer of Revenue and Customs.
Perhaps it would be useful if I were to ask my question now, rather than interrupt the Minister again. The noble Baroness, Lady Hanham, is quite right about this clause, which is of great concern to us, too. The Minister was saying that Clause 16 is very narrow and that only in a small number of cases would this data sharing take place. The difficulty is that the Government have included a let-out clause that talks about the prevention of crime. I am sure that we shall examine that in more detail, but it is hard to see how it is a narrow function, as an official could claim that almost anything was done to aid the prevention of crime. How does the Minister think that including such a widening and enabling phrase helps to keep the clause sufficiently narrow to give us any hope at all?
I am in no way seeking to piggy-back on the Front Bench of either opposition party, but I have another technical question. The Minister can rule it out of order if he wishes. Twenty years ago, one problem of friction between the commissioners and the unions was that working in customs positions at ports was an attractive job and there was a desire that the posts should, if possible, be filled on the basis of Buggins’s turn. On the other hand, there were quite clearly customs officers—other than those who were good dog handlers and achieved great results with the assistance of highly intelligent spaniels—who had a peculiar knack for identifying people who were behaving in a criminal manner. Given the importance of what we are debating, will identifying people who have the knack take preference over appointing those to the office simply on the basis of Buggins’s turn, or has that already happened?
I was simply asking, especially because of the importance of the issue of the defence of the realm, whether customs officers are still appointed to those positions, which were attractive to people within the profession, on the basis of Buggins’s turn or whether there will be an emphasis on identifying people—apart from the dog handlers—who have superlative skill in identifying criminals.
As far as I am aware, within the new structure we will try to avoid Buggins’s turn and go for the best people. Perhaps I may take more advice in detail and come up with an answer.
The type of information that UKBA will handle and disclose will be persons stopped at ports and airports who are smuggling goods and legitimate travellers’ payment of customs duty at the red channel. UKBA officers may disclose certain interceptions to trading standards—for example, goods that may pose public health risks. Those sorts of things will be used as statistical data primarily, but personal customs information cannot be exchanged or used. I hope that that clarifies the point.
We had reached Clause 16. As I said, where personal customs information has been disclosed, recipients may not further disclose that information unless they obtain the consent of a relevant official or do so in accordance with the limited and specific circumstances set out in the clause. For example, a designated customs official could disclose information to a police officer in relation to a matter of national security in accordance with the Clause 16 exceptions. The police officer could then lawfully further disclose the information to a third party, such as the security and intelligence agencies, provided that the disclosure was also made in accordance with one or more of the Clause 16 exceptions.
The test in respect of personal customs revenue information is stricter still. Under Clause 17, before a person can disclose such personal information they must ensure not only that the disclosure is being made for one of the reasons prescribed in the Clause 16 exceptions but that it does not contravene a restriction imposed by the Commissioners for Her Majesty’s Revenue and Customs.
Clause 18 creates a similar criminal offence to that of unlawful disclosure of personal customs information under the Commissioners for Revenue and Customs Act 2005 to cover the Home Office and the UK Border Agency. That means that a relevant official of the Home Office, the Secretary of State for the Home Department or any Minister of the Crown in that department or other person who discloses personal customs information in breach of Clause 15(1), Clause 15(2) or Clause 17 will commit a criminal offence.
To pick up on Clause 18 and the offence of wrongful disclosure, presumably it would be wrong to disclose that information to anyone beyond those who have been identified in Clause 16. That disclosure can be made only with the permission of what is deemed a relevant officer, who is presumably over and above the officer whom we are discussing. Is an offence of wrongful disclosure committed if the information is given to an outsider, a newspaper or a solicitor acting for the defence or for someone being charged? Can the Minister steer us on where the clause will have effect?
If any of the rules in Clause 16 on exceptions is broken and the information is then given to anyone else, that breaks the rule and therefore the person will be liable to—I forget exactly the penalties—something like a period of up to two years’ imprisonment or an unlimited fine. It is not just the people at the border who can be hammered for that but those further up the chain who may get hold of the information, who would face the same penalty. That is partly to enforce how securely we want that information to be kept.
Clause 19 puts it beyond doubt that nothing in Clauses 14 to 17 authorises the making of a disclosure that contravenes the provisions of the Data Protection Act 1998 or as prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000. Clause 19 serves three important purposes. First, it ensures that the Freedom of Information Act cannot be used to obtain confidential taxpayer information. Secondly, it provides that none of the exceptions to the duties of confidentiality created by this Bill will override the protections afforded to personal information in other legislation, including the Data Protection Act. Thirdly, it secures equality of treatment of personal customs information under the Freedom of Information Act, no mater where it is held by HM Government.
As a digression, I agree with the noble Baroness, Lady Hanham, that sometimes the references to these other Acts are difficult to follow. I have spoken to my team and in future we will try to produce something that has a composite. I understand how difficult it is for others to follow this; it is sometimes difficult for me as well. I will try to ensure that we do better in future.
Sections 40, 41 and 42 of the UK Borders Act 2007 set out the confidentiality framework applied to the use and disclosure of information that is provided by HM Revenue and Customs and the Revenue and Customs Prosecutions Office. Clause 20 introduces two new sections, Sections 41A and 41B, for insertion after Section 41 of the UK Borders Act 2007.
Her Majesty’s Revenue and Customs already shares customs information with the Secretary of State for her immigration purposes. Section 41A permits disclosure of customs information to those responsible for the discharge of customs functions by the UK Border Agency or any person acting on its behalf with information for use in discharge of customs functions exercisable by the recipient. In particular, this will enable those staff who currently work for HM Revenue and Customs and who will soon transfer to the UK Border Agency to continue to receive relevant information for the discharge of their customs functions. Section 41B, meanwhile, sets out the specific circumstances in which those who receive customs information supplied under new Section 41A may themselves disclose it to a third party. Wrongful disclosure of such information to a third party will be subject to the criminal sanction prescribed in Section 42 of the UK Borders Act 2007.
Clause 21 amends Section 36 of the Immigration, Asylum and Nationality Act, which imposes a duty to share information relating to persons or goods crossing the frontier between the police, HM Revenue and Customs and the Secretary of State. The amendment effected by this clause ensures that the duty under Section 36 reflects the fact that the UK Border Agency will in future exercise customs functions. Information is, of course, an essential tool in support of law enforcement and national security. It is also key to the agency being able to secure the optimum deployment of its resources across all its functions—noble Lords have referred to those difficulties, such as small ports and other areas—helping it to deliver real business benefits. We are seeing already what can be achieved.
Clause 22 provides that the Secretary of State may by order apply any provision of the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989 that relates to the investigation of offences or the detention of persons by police officers to investigations conducted or persons detained by designated customs officials or immigration officers.
Clause 25 provides for the sharing of facilities and services between Her Majesty’s Revenue and Customs and the UK Border Agency. In future, the principal responsibility for the exercise of customs and revenue functions at the border will rest with the new border force rather than with HM Revenue and Customs, and a number of HM Revenue and Customs staff will also transfer to that force. Accordingly, specific provision is needed to facilitate the transfer to the Home Office of the rights, powers, duties and liabilities under the contracts that Her Majesty’s Revenue and Customs currently has with those staff due to transfer.
Clause 26 amends Section 48 of the UK Borders Act 2007, which established the office of the Chief Inspector of the Border and Immigration Agency, the forerunner of the UK Border Agency, and Clause 27 gives the Secretary of State power to make regulations to confer functions on Her Majesty’s Inspectorate of Constabulary, the Scottish inspectors and the Northern Ireland inspectors in relation to those with responsibility for the exercise of immigration and customs functions by the UK Border Agency.
Section 41 of the Police and Justice Act 2006 provides the Secretary of State with a power to make regulations conferring functions on the Independent Police Complaints Commission in relation to the exercise by immigration officers and officials of the Secretary of State of specified immigration and asylum enforcement functions. Clause 28 enables the Secretary of State to further extend the functions of the IPCC to inspect in the future any contractual services provided in relation to the discharge of those enforcement functions. The chief inspector provides an external review, independent of the UK Border Agency. Currently, that remit applies to immigration, asylum and nationality functions only. Clause 26 will allow the chief inspector to look at the full range of functions exercised by the new border force. This clause also specifies those functions that the chief inspector shall monitor and report on only if directed to do so by the Secretary of State. Allowing HM Chief Inspector of Prisons, HM Inspector of Constabulary, the Scottish inspectors and the Northern Ireland inspectors to continue to have oversight of removal centres, short-term holding facilities and detention facilities will ensure inspection by inspectors with the right experience and expertise.
I will deal with other provisions covered in Clauses 29 to 32 as a group, despite their variety. Clause 29 enables the Attorney-General, if she considers it appropriate, to assign functions by order to the Director of Revenue and Customs Prosecutions to institute or assume the conduct of criminal proceedings in England and Wales, or to provide legal advice relating to a criminal investigation of a kind specified in the order by a person to whom this clause applies.
The Minister is kindly going through all the clauses not knowing where I might challenge them on a clause stand part debate. I have been letting him drift on because it is nice that he is able to read out his brief, but perhaps I may pick up on a couple of points that I would have made during a clause stand part debate.
Clause 29 seems to follow more or less exactly the provisions in the Commissioners for Revenue and Customs Act 2005, when those powers were given to the commissioners. Are there any differences here? When legislation is amended or chunks of it are taken out in new legislation, I think that it is beyond the wit of most of us to get into a detailed examination of the legislation it has come from. I have looked at the 2005 Act and I want to be clear about Clause 29 in that the power here is to undertake the prosecution of offenders. Would that power extend to the Director of Revenue and Customs being able to bring in lawyers and barristers, or would the people dealing with such cases come from in-house? Are these matters contracted out for prosecution purposes or are they always handled internally? I ask that because subsection (2) gives a list of the people to whom subsection (1), which assigns the function of the institution of criminal proceedings, applies. Subsection (2) then delegates further from the Director of Revenue to others who are responsible for dealing with matters which obviously will go to court. It would be helpful to know where the buck stops in the institution of legal proceedings, and who then is brought in to conduct those legal proceedings.
I do not have that information at my fingertips. Perhaps I may await advice from the Box and then come back to the noble Baroness on those points. I am not absolutely clear on the specifics.
Clause 30 deals with the accounting of revenue collected by the UK Border Agency and Clause 31 provides the flexibility to meet any future changes in the revenue accounting arrangements set out in Clause 30. Clause 30 requires the Director of Border Revenue and the Secretary of State to pay any money received by way of revenue to Her Majesty’s Revenue and Customs in accordance with Treasury directions. The term “revenue” is defined for the purposes of Clause 30 to include all duties and taxes, penalties and the proceeds of forfeitures. This will include duties and taxes collected from passengers in the red channel and on goods imported in the post.
The current intention is that these moneys will be paid directly into Her Majesty’s Revenue and Customs existing bank accounts. The revenue collected is not available to the new border force to fund its operations and Her Majesty’s Revenue and Customs will be responsible for the payment of receipts into the Consolidated Fund, together with its other revenue receipts. Clause 31 provides flexibility for future changes in the revenue accounting arrangements set out in Clause 30.
Clause 32 amends Section 21 of the UK Borders Act so that it applies to the UK Border Agency and to those persons who have principal responsibility for exercising customs functions at the border.
Clause 33 provides an order-making power for the Secretary of State to modify enactments. This provision will ensure that current and future legislation which is relevant to and necessary for the exercise of customs functions by the UK Border Agency is applied as appropriate. Specifically, the provisions will enable the Secretary of State, subject to consultation with the commissioners, in certain prescribed circumstances to modify and apply legislation to the relevant persons specified in the clause or to the exercise of functions by those persons. For example, the order may be used to apply legislation currently applicable to the Commissioners for Revenue and Customs and their officers to the Secretary of State, the Director of Border Revenue, designated customs officials, immigration officers or other officials of the Secretary of State.
Although Part 1 of the Bill provides for references in certain enactments to the commissioners and their officers to be construed, where appropriate, to include references to the Secretary of State and her officials or the Director of Border Revenue, these provisions cannot be used to modify the content of relevant enactments. Accordingly, Clause 33 is necessary to ensure that legislation currently applying to Her Majesty’s Revenue and Customs will in future apply, with any necessary and appropriate modifications, to the Secretary of State and her officials or the Director of Border Revenue. Clause 33 will also ensure that any terms in enactments, such as references to the offices of Her Majesty’s Revenue and Customs or to particular staff grades within that department, are applied appropriately to the Secretary of State and her officials or the Director of Border Revenue.
Lastly, Clause 33 requires the Secretary of State to consult the commissioners before making an order under the clause which makes provision in relation to a customs matter, whether general customs or customs revenue, or in relation to the exercise of a customs functions. As the order may amend primary legislation, it will be subject to the affirmative resolution procedure to ensure the appropriate level of parliamentary scrutiny.
Clause 34 provides for incidental, supplementary, consequential, transitional or transitory provision to be made by order. Such provision may be made where considered appropriate for the purposes of Part 1, or in consequence of that, or to give full effect to any provision made by or under that part. It is not possible to anticipate all of the areas in which such provision might be required, either now or in the future. This clause will provide the necessary flexibility to ensure that Part 1 of the Bill delivers all that it is intended to achieve and to respond to future developments in other areas which impact on the border force. This clause sets out the scope of the order-making power, and establishes that where the order amends or repeals primary legislation, it will be subject to the affirmative resolution procedure. Otherwise, as the order may deal only with incidental, supplementary, consequential, transitional or transitory matters, the negative resolution procedure will provide the appropriate level of parliamentary scrutiny.
Clause 35 makes further provision about subordinate legislation made under Part 1 of the Bill. It provides that, with one exception, the orders and regulations made under Part 1 of the Bill must be made be made by statutory instrument and establishes the scope of such instruments. This provision also establishes the parliamentary procedures to which orders and regulations, made under Part 1, are subject.
The clause makes clear that orders made under Clause 29, relating to the assign to the function of the Director of Revenue and Customs Prosecutions, are not made by statutory instrument and follow no parliamentary procedure. This approach is consistent with similar order-making powers already available to the Attorney-General, such as that found in Section 35 of the Commissioners for Revenue and Customs Act 2005, relating to customs prosecution, and Section 3(2)(g) of the Prosecution of Offences Act 1985, in relation to the assignment of functions to the Director of Public Prosecutions. Clause 36 provides interpretation of the terminology used in Part 1.
I am afraid that it was rather a long slog going through all of those provisions, but I hope that was useful, because I know that I will be answering some specific questions later. I hope it was of value; I think it was important. The amendments would not make our nation and people safer. Indeed, the turmoil caused would actually make our country less safe, while the detailed work that is already underway and happening is making us safer.
I hope that the noble Lord and noble Baroness will feel able to withdraw their amendments.
After an hour and nearly 40 minutes, the amendment currently before the Committee is Amendment 2 as an amendment to Amendment 1 in the name of the noble Lord, Lord Avebury. The noble Lord must first decide what to do with his amendment and then we will move on to Amendment 1.
We are most grateful to the Minister for giving that detailed explanation of all the clauses that are subject to these amendments. We will take time to digest what he said but we will come back to our task of scrutinising the Bill in greater detail with much better information than we had before. I am delighted to be able to withdraw my amendment.
Amendment 2 ( to Amendment 1) withdrawn.
I thank the Minister for going through that. It was a rather convoluted way of getting a pretty generalised debate on what is being proposed and identifying exactly how these officers are going to operate. I am grateful for that. A clear reading of Hansard before we come to the next stage will help us all to decide what we need to take forward.
I thank the noble Lords, Lord Dear and Lord Hylton, and the noble and learned Baroness, Lady Butler-Sloss, for their contributions on Amendment 1 and I acknowledge the amendment of the noble Lord, Lord Avebury.
It is not the Opposition’s duty to complete legislation or to work out legislative requirements. The duty of the Opposition is to produce ideas for legislation and to see whether they work.
I listened carefully to what the Minister said about the co-operation which he says is being built up with the various police forces in and around the border and about the various implications. However, I am still unconvinced about the desirability of entirely incorporating the police into a force, although I think that it is. I shall read very carefully what has been said. It is still my view that we will miss a trick if we do not incorporate the police and ensure that they are more than consultees in what is going on in defence of our borders. Every one of us here is interested in ensuring that we have the best possible mechanisms for ensuring that our borders are safe and secure, so that they are intimidating where they have to be intimidating but welcoming where they should be welcoming. We need proper personnel dealing with it.
For today's purpose I shall withdraw my amendment. I will consider carefully what has been said before deciding whether to return to it at Report. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Clause 1: General customs functions of the Secretary of State
3: Clause 1, page 1, line 6, leave out “general”
We start now on the more detailed scrutiny and consideration of the Bill. Some areas may already have been covered a bit; I apologise if we go back over some of them.
Amendments 3 and 5, in Clause 1, are probing amendments, as are many of the other amendments coming forward today. They are intended to probe the functions of the Commissioners for Her Majesty's Revenue and Customs and the powers being transferred to the Secretary of State and the UK Border Agency. As I noted on Second Reading, Part 1,
“parts the department of Her Majesty's Revenue and Customs from most of its customs and many of its revenue functions, and gives them to the Home Office”.—[Official Report, 11/2/09; col. 1133.]
I also expressed concerns about the proposals. We have already covered some of those concerns. They include the Government’s capacity or competence to handle sensitive information; the extension of policing powers being given to the UK Border Agency—by default really, because there are no police; and the level of training to be provided to officials of the agency.
I think that we will be going through subsection (8) in detail but should like to know now what is meant by “general customs function”. It is a new phrase. We know about the customs functions that are part of Her Majesty’s Revenue and Customs, but what are the general customs functions relevant to the Bill? Once we know, we can decide whether we feel it appropriate that they should be transferred. I beg to move.
The noble Baroness’s amendment allows us to explore what powers and functions immigration officers will have when they are acting as customs officers as opposed to what they will not have, which is spelt out in Clause 1(2). The powers of HMRC officers, as far as we know, are specified in the Customs and Excise Management Act 1979 and the Finance Act 2008. They include a number of powers which are clearly not relevant to border posts, such as visiting and inspecting without obtaining consent and searching computer records; and other powers which may be exercisable at the borders, such as invasive physical search, seizure of goods, impounding aircraft and ships, and powers to arrest and detain. What we need to know in each of these cases is whether these powers will be exercisable by immigration officers and where to look for the particular statutory authority that confers those powers on them.
The Finance Act 2008 renews the criminal offence of destroying or concealing records and introduces several penalties for non-compliance. It requires a third party to provide information and documents for the purpose of checking a person’s tax position, and the definition of “tax position” outlined in the same Act would appear to require the possession of personal data that could be of use in the immigration context. Under existing immigration legislation, requirements relating to third parties are narrowly defined, so the obligation for third parties to provide information for immigration purposes seems to be a major increase in powers and constitutes a substantial intrusion into civil liberties. If that is correct, the Government, so far as I see it, have made no attempt to justify this potential interference with Article 8 rights.
HMRC powers of arrest allow a person to be arrested for an offence that was allegedly committed up to 20 years before. Can we have an assurance that that would not apply to immigration offences? What safeguards are there in the Bill against the extension of HMRC arrest powers to immigration offences?
We have a broad policy concern, as my noble friend has already said, about the continued association between immigration and criminal activity, which is potentially underlined by the merger of immigration and HMRC powers. The 1979 Act’s search powers for a customs officer are directed at persons who may be carrying any item that is prohibited or restricted, or which is liable to excise duty or tax that has not been paid, and the threshold for suspicion is low. The search may extend to a strip search and an intimate search, and HMRC officials may detain for as long as is reasonably necessary while a search is carried out. If a person does not agree to the search, the customs official may arrest him.
Under the Bill, UKBA staff will be able to carry out physical examinations at the border, either of their own volition or at the request of HMRC. Although they have their own powers of detention, the search powers that they have already under the 2007 Act are being enhanced. What assurances can the Government offer that UKBA officials will not inappropriately use powers that are designed for customs purposes in immigration control? Will they be obliged to serve a notice on the subject who is being searched or detained, specifying the Act or SI under which that power is being exercised?
Liberty is concerned about the power of HMRC officials to take fingerprints and DNA samples, and we are worried about the progressive extension of taking and retaining biometric information. We are particularly concerned about the failure of the Government to respond to the judgment of the European Court of Human Rights in the S and Marper case, where it was found that our policy on the retention of DNA samples was in breach of Article 8.
We will be raising that issue under Amendment 111, but I give notice that I shall be mentioning the particular case of a British citizen who was stopped at Heathrow terminal 1 and required to give fingerprint and DNA samples which are to be retained indefinitely, in contravention of the judgment. I wrote to the Secretary of State about this on 5 December, the day after the judgment, and had an unsatisfactory reply from the Minister of State, Mr Vernon Coaker. I will give the reference so that the Minister can look it up: it was M50/9, dated 14 January 2009. At the time of the judgment, almost 900,000 samples were being retained from people who were never charged or convicted subsequently of any offence. I take a very serious view of this matter, which we will need to discuss in more detail later on.
I apologise for a short exercise in parsing, but the Minister may be able to help me by confirming that I understood this correctly. General customs functions are alluded to in the first four lines, from Part 1 downwards, and a definition is given in Clause 1(8):
“In this Part ‘general customs function’ means a function exercisable in relation to a general customs matter”.
That does not, of itself, tell us what a general customs matter is. I realise that subsection 2(a) to (e) allude to a general customs matter. Am I right in thinking that, patently, revenue customs functions fall within subsection (2) (a) to (e) but that some of the latter are matters that are clearly the responsibility of the commissioners but not actually cash revenue issues? It would be helpful if the Minister could give us a phrase that described those functions that remain with HMRC but which are not specifically tax revenue. I hope that question is clear. If it is not, I would be glad to clarify it.
The noble Lord was referring somewhat to points raised by the noble Baroness, Lady Hanham, in terms of the distinction between customs functions in general customs matters and in revenue customs matters. It is the same issue about the extent of the split. The “general customs matters” is a phrase that has been coined for non-customs revenue matters in relation to which the Secretary of State may exercise functions concurrently with the commissioners.
General customs matters are, as I mentioned before, things such as drugs smuggling, weapons smuggling, plant and animal health controls and endangered species controls. Revenue customs matters are things such as collecting duty in the red channel, catching tobacco smugglers and fining, and charging duties on postal packets.
I wholly understand that. I have no problem with understanding the revenue functions. Money laundering does come into this subset, but is not, to the best of my knowledge, a specifically revenue-raising exercise—although the penalties may be. If we are discussing a general customs matter as being distinguished from the five items (2)(a) to (e), but not all those are tax revenue items, can the noble Lord give us a phrase that we can allude to in shorthand hereafter, so that we know what we are talking about?
I do not think that I can off the top of my head. Clearly, there is confusion. If I may, I would like to think about how we might clarify that. It is not in anyone’s interest to have confusion on this. The distinction between the customs functions that the Secretary of State may exercise and those vested in the Director of Border Revenue are extremely important. Therefore we must make sure that they are clear in everyone’s mind. Perhaps we have not done that sufficiently well. Therefore, I will take that away to look at it to ensure that it is clear.
We try to use the description “customs revenue matters” in relation to the way in which the Director of Border Revenue may exercise functions concurrently with the commissioners. “General customs matters” is the term coined for non-customs revenue matters in relation to which the Secretary of State exercises functions. It is important that those two functions are separated to ensure which provisions are relevant and applicable to each set.
The term “general customs matters” does not mean that the Secretary of State will be able to exercise all of the non-revenue functions of the commissioners for revenue and customs. He will not be able to exercise all of them. In addition to excluding revenue matters from the definition of “general customs matters”, we have also tried to be careful to exclude other non-revenue functions of the commissioners, which the Secretary of State will have no need to exercise, such as, as mentioned by the noble Lord, regulation of money and service businesses, which impinges on money laundering and the like.
I hope that that will clarify the position for the noble Baroness and show the importance of having those distinctions clear in our mind. On that basis, I hope she will be content to withdraw her amendment.
The noble Lord, Lord Avebury, asked about provisions relating to customs offences applying to immigration. I understand his nervousness; indeed, I would like to take this opportunity to say that Part 1 is aimed at having a stronger border force and making the nation safer. There is no intention to criminalise immigrants or immigration, and we are not trying to relate counterterrorism provisions to immigration either. The provisions relating to customs offences will continue to apply only to customs matters and not to immigration. The powers may be used by designated customs officials in the border force in respect of those particular customs offences, so there is a division—they will not be used for other matters. Officers have to be very clear about whether they are exercising customs or immigration powers—it is part of their training. They cannot use customs powers for immigration purposes, or vice versa.
The Minister has tried very hard to help us. However, he is handicapped by the fact that neither he nor we have access to Schedule 1 to the Commissioners for Revenue and Customs Act 2005 which I suspect delineates which areas would be general customs matters to be passed over. I am assuming that a general customs matter being taken out of Schedule 1 means that there are other powers left behind in the schedule for Her Majesty’s Revenue and Customs to continue to use. It is a great shame that the Bill is so truncated because those powers and responsibilities are not delineated in it. It is of fundamental importance what these officers will do and what powers they will have. It is extremely difficult to discuss the Bill without being quite clear what those are and being able to see the build-up in Part 1—it begins as a germ and becomes a virus—of how this is being done.
I should be grateful to have from the Minister’s officials a list of what general customs matters are. As I say, I suspect that they come out of Schedule 1 to the Commissioners for Revenue and Customs Act, but if not, I should be glad to know that. Before the next stage of the Bill, we want to know what will be done in the name of the Secretary of State that was previously done in the name of Her Majesty’s Revenue and Customs. Otherwise, this part of the Bill is too opaque for us to be able just to let it go through.
I have sympathy with what the noble Baroness is saying. As I said earlier, the revenue customs matters include collecting duty in the red channel, catching tobacco smugglers and charging duty on post and packets, but I am not sure that that is the totality. I assure the noble Baroness that we will get that information so that it is quite clear what has been pulled out of the other Act. It needs to be absolutely clear. But having said that, I think it is right that some of these revenue customs matters have to go across because there is a border requirement for them. I will ensure that my team gets that information and lets all those who are party to the debate see it.
I am extremely grateful to the Minister for saying that he will do that. “General customs matters” do not seem to be revenue matters, which is where we get into difficulty as to what we are talking about. Since everything comes from Her Majesty’s Revenue and Customs, there are two tranches to it. In this part of the Bill, the “general customs matters” seem to relate to the duties of the customs officers in their guise as Customs. Later parts of the Bill relate to the revenue aspects which are being passed down, which I presume are separate. They will then be amalgamated into one when those officials become all-singing and all-dancing. In the interests of clarity, please may we know the revenue powers that are being passed down from Her Majesty's Revenue and Customs and the general customs powers, because I suspect that they are different and are two separate streams?
They are different, but they are functions exercised by customs officers. The “general customs matters” such as drug-smuggling are those in which the immigration authorities can already be involved. The provision merely clarifies the reporting lines, because matters to do with Revenue and Customs—for example, the funding side—cannot be dealt with directly by the Secretary of State. A rule separates those matters and they have to be handled through HMRC. We therefore need to identify those two areas separately.
Amendment 3 withdrawn.
4: Clause 1, page 2, line 19, after “applies” insert “only”
Amendments 4, 9 and 18, which make up this group, are also probing amendments, designed to find out what enactments, instruments or documents relating or referring to the Revenue and Customs are intended to be applied to immigration officers—if a third tier of functions is not going to be incorporated in one person or if they going to operate on their own—and other officials of the Secretary of State. We would like it clarified that future Acts will not be included by this provision in a way that prevents proper scrutiny, because the Bill rather suggests that that is what could happen.
What future Acts does the Minister have in mind, if any? The provision looks like mission creep without the benefit of parliamentary scrutiny. Perhaps the Minister could let us know which likely orders we need to keep an eye on to make sure that things are not happening without Parliament’s knowledge. I beg to move.
The noble Baroness has raised further interesting points. One issue, which goes back to our debate on the previous group of amendments, is how the users of this service, the people who are coming into the country, will know what officials are allowed and not allowed to do. That may seem a nicety, because it is obvious that the officials are there to keep our borders safe, look after visitors and check that they are not criminals. However, if they stop an innocent person and subject them to searches, that person has a right to be completely clear about what officials are entitled to do and at what point they can appeal against the officials’ action because it is beyond what they are entitled to do. If we are confused as to who can do what, when, to whom and how, it will be much more confusing not only to people coming in who speak English but also to those who do not do so, and even possibly to their lawyers should they need to resort to them. Will the Minister indicate how he sees some guidance on those matters, even at the most basic level, being extended in ports and airports? It may state, for example, “These officials have the right to do this. If they ask you to, you should comply. They do not have a right to do this, and, in these circumstances, you would be entitled to consult X”. What guidance will be available?
I ask this only to test whether I have understood the text of the Bill correctly. I am looking at the passage that says:
“This section applies to … an enactment passed or made before the end of the session in which this Act is passed, and … an instrument or document issued before the passing of this Act”.
Those seem to me to be helpfully exclusive statements. The second, relating to Acts already passed, is straightforward. The Bill is then saying that the only other kind of enactment that could apply would be one that, because this is a running issue, may be passed after we have concluded the business of this Bill. In that case, the word “only” would not be needed, because it would exclude any Bill or enactment subsequently. If I have not understood that correctly, I have no doubt that the Minister will tell me.
Clause 1 already expressly limits the general customs function that the Secretary of State may exercise concurrently with the commissioners to those contained in enactments, instruments or documents passed, made or issued, as the case may be, before the end of the parliamentary Session in which this Bill is passed. The insertion of the word “only”, as suggested by Amendment 4, is therefore unnecessary. However, Clause 2 allows provisions to be made by order for functions conferred on the commissioners in enactments passed or made after the end of the Session in which this Bill is passed to be exercisable concurrently by the Secretary of State. This provides the necessary flexibility to respond to future changes in the commissioners’ functions and to allow the Secretary of State to exercise those functions when it is appropriate that she should do so.
The order-making power in Clause 2, subject as it is to the affirmative resolution procedure, provides the appropriate level of parliamentary scrutiny for the making of any such provision. Various non-customs and revenue functions are given to the commissioners by various enactments: the Postal Services Act, the Proceeds of Crime Act 2002, the Public Health (Control of Disease) Act 1984, the Merchant Shipping Act 1995, and so on. It is likely that future Acts may do likewise and may give functions to the commissioners, the Secretary of State or both. However, it is also sensible to retain some flexibility to allocate functions by order, in view of the new arrangements at the border and the likely need for HMRC and the UK Border Agency to have a role in enforcement of future matters. The noble Lord, Lord Brooke, is absolutely correct in his interpretation of what he read.
I am not altogether clear what Amendment 9 seeks to achieve, but in practice it would have no effect. Clause 3(7) as drafted provides that the enactments, instruments or documents to which Clause 3 applies are enactments passed or made or instruments or documents issued before this Bill is passed and, subject to express provisions to the contrary, enactments that are passed or made or instruments or documents issued after this Bill is passed. Inserting the word “only” makes no difference at all to that, as it does not alter the enactments, instruments and documents to which Clause 3 applies. The effect of Clause 3 as drafted is that, so far as appropriate, general customs functions conferred on HMRC in enactments, instruments or documents made, passed or issued before the end of the Session in which the Bill is passed or, unless expressly provided otherwise, after this Bill is passed will be deemed to have been conferred on designated general customs officials as well. This clause therefore provides the mechanism by which a designated general customs official will have access to the functions, powers and protections afforded to an officer of HM Revenue and Customs in respect of general customs matters both now and in future. It also ensures that policy guidance and instruction documents issued to officers at HM Revenue and Customs will apply where appropriate to a designated customs officer.
Generally speaking, it is right that functions, new or amended powers and protections that are granted to officers of HMRC in the future should apply automatically, together with the associated policy guidance. This reflects the fact that, although the UKBA will be principally responsible for the exercise of these functions at the border and HM Revenue and Customs for their exercise inland—these are the two separate chunks—in many cases they will be exercising the same powers. Where it is not appropriate, however, for functions and powers conferred on officers of HMRC to be given automatically to designated general customs officials, this can be provided for expressly.
In the absence of a provision in Clause 3 ensuring that any general customs functions conferred on officers in future are usually conferred at the same time on designated general customs officials, unnecessary inconsistencies might arise in the respective approach of the UKBA and HMRC to the exercise and protections afforded in respect of the same customs functions.
As regards Amendment 18, Clause 7 already limits the scope of the director’s functions to those contained in enactments made or passed before the end of the Session in which this Bill is passed, or in instruments or documents issued before the passing of the Bill. Therefore, I believe that the amendment is unnecessary.
On the point made by the noble Baroness, Lady Miller, I do not have at my fingertips exactly what guidance will be available. I am not exactly sure what guidance is available at the moment when one goes through customs and immigration. Generally, I tend to do what they tell me to do as long as it does not seem illegal. However, I shall certainly find out what that is and come back to her.
On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
I thank the Minister for that reply. As I said, many of these amendments are probing. The purpose of inserting “only” by way of Amendments 4 and 18 was to try to ensure that these matters do not refer to legislation that goes way back, which could mean that we had no idea of what we were altering. I am still slightly less happy about modifying any enactment passed or made after the passing of this Bill. I hear what the Minister says but I shall want to consider whether I need to come back to that aspect. I shall want to read carefully what has been said, although I am content with the replies on the other two provisions. For today, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
Amendment 5 not moved.
Clause 1 agreed.
Clause 2 agreed.
Clause 3: Designation of general customs officials
6: Clause 3, page 3, line 17, leave out from “officer” to end of line 18
Amendments 6 and 8 probe—they may refer to what we have already discussed, but I hope that the Committee will forgive me if that is the case—what customs functions and powers are to be passed to the Secretary of State. The Minister has already given a commitment to ensure that we shall be told what the customs functions are, but the powers are a different matter. The amendments also probe who, other than immigration officers, it is intended will be able to exercise these powers. Will they apply to the new customs and revenue officers?
Amendment 7 is designed to ask what functions, other than those customs functions of a revenue and customs officer, it is intended that Clause 1 will confer on the Secretary of State. We do not think that it is acceptable to transfer functions without first knowing more about who will exercise them and how extensive they might be. To some extent, that includes the delegation of functions and how low that goes.
Amendment 10 is a precautionary measure. Parliament must be allowed a final say on the transfer of these functions. Given how little we know about the practicalities of the Government’s plans, we would like Parliament to have the right to retain a say on how they are worked out in future. I beg to move.
Perhaps I may first answer the last question. It is quite usual for a designated official below a Secretary of State to carry out functions that are the responsibility of the Secretary of State. That is not unusual; it relates to the Carltona principle, which stems from a specific case.
I shall deal with Amendments 6, 7, 8 and 10 as a group. These amendments, by restricting the Secretary of State’s ability to designate officials in her department as designated general customs officials, would effectively take away many of the advantages of the integration that Part 1 aims to achieve. I hope that I have explained why we are trying to achieve it. Significantly, they would hamper the effectiveness of individual officials exercising combined customs and immigration functions on behalf of the UK Border Agency. Therefore, I must resist these amendments.
Some 4,500 existing revenue and customs officers, as I mentioned, will be transferred to the new border force to carry out customs functions. On their transfer, they will no longer be officers of HMRC and will need to be designated under the provision in Part 1 to enable them to continue exercising the customs functions that they currently carry out. Depending on his or her role, a designated general customs official will need to be able to exercise some or all of the functions in relation to a general customs matter that are currently exercised by an officer of Revenue and Customs.
Amendment 6 would mean that officers who transfer from HMRC to the border force and become officials of the Secretary of State could not be designated to exercise general customs functions unless they were first appointed as immigration officers. We believe that this is unnecessary. While in the future the majority of the UK Border Agency officials at the front line will exercise immigration and customs functions, and therefore will be appointed as immigration officers, this may not be so in every case. Specialist roles and skills will also be retained by some of the agency’s officials—for example, by those exercising general customs functions at the postal hubs and by drug-detector dog handlers at airports, who are the very people that the noble Lord referred to earlier. Those officials will not require immigration powers to perform those specific functions.
An officer of Revenue and Customs currently exercises two sets of functions: those that are vested directly in him or her as a customs officer and those that he or she exercises on behalf of the Commissioners for Revenue and Customs. Likewise, a designated general customs official will need to be able to exercise both sets of functions, subject to any limitations that are placed on an individual’s designation to reflect his or her particular role. Designated customs officials will, for example, need to make decisions on the return or disposal of seized goods. These are day-to-day operational decisions currently taken by officers of HMRC on behalf of the commissioners in accordance with a framework of policy and guidance laid down by the commissioners.
In the future, designated customs officials will need to be able to take these decisions on behalf of the Secretary of State so that the border force can run its affairs effectively and efficiently. Amendment 7 would prevent those officials from taking those decisions and would leave all such decisions to be taken personally by the Secretary of State.
Amendment 8 would remove subsection (3) from Clause 3. The purpose of that subsection is to make it clear that, notwithstanding the exercise of the Secretary of State’s general customs functions by designated general customs officials, the Carltona principle, to which I referred, is preserved. I am sure that noble Lords will appreciate the importance of the Carltona principle, in accordance with which the Secretary of State’s functions may be exercised by any of her officials. Clause 3(3) ensures that this important principle is preserved.
Before designating a general customs official under Clause 3, the Secretary of State must be satisfied that the capability, training and suitability requirements set out in Clause 4 are met. This issue of training has been raised a number of times. The noble Baroness, Lady Hanham, has particularly emphasised it and I agree entirely about its importance. The Government are satisfied that the robust designation process established by the Bill is the appropriate one, so I must resist Amendment 10, which would add a layer of parliamentary scrutiny to this, as unnecessary and disproportionate. The amendment would place a great burden on Parliament, necessitating each designation of a general customs official to be approved by both Houses before being made. While I am sure that more of the noble Baroness’s time at the Dispatch Box would greatly please noble Lords, I doubt whether the Committee would like to be detained any more on this, as I have been going on at length. In light of this explanation, I hope that the noble Baroness will feel able to withdraw her amendment.
I thank the noble Lord again for his response and helpful explanation, some of which is essential. Our words go into Hansard, so that people know what is going on. I do not think that I have come across such generality of legislation and terminology as there is in this Bill before. Maybe that is just my ignorance. When it refers to,
“any other official of the Secretary of State”,
then it is helpful to have had the noble Lord’s explanation that that person has to be an appropriate person of an appropriate standing, because you could read into this Bill and these terminologies that the Secretary of State could say to anybody running down the corridor, “Come here, we need you to do a little bit of this or that function”. That is taking it to absurdity, but within the word “any” you have literally anybody within the remit of the Secretary of State. It is important that we are clear that there is a hierarchy that the Secretary of State can lean on but that we are not just talking about anybody; these people have to be appropriately positioned and they have to have appropriate training and knowledge to fulfil the functions asked of them. I thank the Minister for that reply and I beg leave to withdraw the amendment.
Amendment 6 withdrawn.
Amendments 7 to 10 not moved.
Clause 3 agreed.
Clauses 4 and 5 agreed.
Clause 6: The Director of Border Revenue
11: Clause 6, page 5, line 3, leave out “must” and insert “may”
We turn now to a very important post that has been brought into this part of government regulation: the Director of Border Revenue. This person is to be designated by the Secretary of State to exercise the functions of border revenue and to be able to carry out general customs functions as well. This position is effectively the top of the tree, after the Secretary of State. The director will have an enormous amount of power and influence and an enormous amount to do. Yet the Bill provides that the Secretary of State will designate this person. So the Secretary of State says to an official, or somebody he or she likes in the department, “You are going to be the Director of Border Revenue”. What other highly paid position of Government is chosen by the finger or the hand falling on the shoulder? For sure, that is what this is. It was made very clear at Second Reading when I asked who this person will be. The Minister said that the hand had of course already fallen and it was going to be the chief executive of the UK Border Agency. If it is intended that the Director of Border Revenue should always be the chief executive of the UK Border Agency, we should say so and we should not pretend that it is another official. It is not another official; the chief executive of the UK Border Agency will also be known as the Director of Border Revenue.
I find it absolutely inconceivable that a position such as this should not be open to competition and that it should not at least be put out to competition within the department. There will be no choice other than that of the Secretary of State. The Minister may say to me, “But of course it won’t happen like that. There will be a proper process and proper consultation. Someone will spend a huge sum of money on head-hunters and we will go all the way through the normal processes that cost everyone a lot of money but at least are transparent”.
The whole question of who is to be the Director of Border Revenue is only transparent at the moment because I asked about it at Second Reading; otherwise, at this stage of the Bill we would not know who it was going to be. However, we do. We have a very clear idea of the process but I think that the Minister needs to explain to us why that is the process for this post.
Presumably, the next chief executive of the UK Border Agency will not just have a hand fall on their shoulder when the current one leaves. That post, I hope, will also be a matter for open competition. Therefore, when subsequently—a very long time down the line, I am sure—the post of chief executive of the UK Border Agency is to be filled, the post will be advertised not only as the chief executive of the UK Border Agency but as the Director of Border Revenue.
I await the Minister’s reply with great interest because I find this an extraordinary way to deal with a very senior position in the organisation. I beg to move.
I thought that it had been generally known prior to Second Reading that Lyn Homer was to be appointed to this post. However, there is some merit in the discussion that we are having now because, as I understand it, it will not always be the case that the person appointed as Director of Border Revenue will also be the head of the UKBA.
The noble Baroness put her finger on an important point when she said that a huge sum of money could have been spent on head-hunters. At least this has the merit of both posts being filled by the same person, thereby saving money for the taxpayer. However, it would be interesting to know from the Minister what the procedure is to be on future occasions. Does he envisage that the normal course of events will be for the same person to fill the post of Director of Border Revenue and head of the UKBA, or is this an exceptional and unique arrangement which is simply to start the process off but will never be repeated in the future?
We want to ensure that there is a clear, single and unified command structure, achieving the main objective of the Cabinet Office review to provide an integrated customs and immigration service at the border. That is the aim here. The role of Director of Border Revenue needs to be very closely integrated with that of the chief executive of the UK Border Agency to provide a single line of command in the agency’s management structure. Our intention is that that will always be one and the same person, even in the future. That is what we would want.
I had hoped that I had made it clear to the noble Baroness, Lady Hanham—although plainly I had not—that it was our intention that the current chief executive of the UK Border Agency should be designated as Director of Border Revenue. The chief executive will be accountable to the Home Secretary in relation to all non-revenue matters, but in respect of revenue matters she or he—at present it is she; as was mentioned, it is Lyn Homer—will act independently, subject, like HM Revenue and Customs, to the general oversight of Treasury Ministers. Therefore, to an extent, there will be a certain schizophrenic element to the role but there are other examples of that, and we believe that it is more important to have this single line of command.
Under this model, we felt that a Home Office official was the most appropriate person to be appointed as Director of Border Revenue, having an understanding of the department’s wider strategic objectives and the operational and managerial command of the UK’s border forces. Of course, if the chief executive’s post were to become vacant in future, it would be possible to fill it through open competition under Civil Service rules explicitly on the basis that the postholder, the chief executive, would also be the Director of Border Revenue. I hope that on that basis the noble Baroness will agree that her amendment is unnecessary and will feel able to withdraw it.
I think that the amendment is wholly necessary. Perhaps I am alone in this Chamber in not having read that the Director of Border Revenue will also be the chief executive of the UK Border Agency. It does not say so anywhere but we have now established that through some questioning. Following on from that is the question of whether there are any conflicts in this dual position. The chief executive of the UK Border Agency would find him or herself in great difficulty in talking to the Director of Border Revenue because they would be one and the same person. I find the idea of two very senior positions metamorphosing into one extremely challenging. Presumably, whenever this position becomes vacant in future, it will be advertised, and it will be known that the Director of Border Revenue is to be the chief executive of the UK Border Agency.
This is extremely revealing and I am very glad that I asked the question. As I said, I had not known before Second Reading that Lyn Homer had been designated as the director. I have no objection to that as she is a very fine chief executive, but it is helpful to know why that is so and what will happen in the future. I am grateful for the Minister’s reply and beg leave to withdraw the amendment.
Amendment 11 withdrawn.
Amendments 12 to 15 not moved.
Clause 6 agreed.
Clause 7: Customs revenue functions of the Director
16: Clause 7, page 5, line 11, leave out “concurrently with the Commissioners”
I shall speak also to Amendment 17. These amendments are designed to probe what customs and revenue jurisdiction it is intended will be transferred to the Secretary of State and why, and to consider how the jurisdictions of the Commissioners of Customs and Excise and the Secretary of State will interrelate. Does “concurrently” mean in tandem with or alongside? In other words, will there be a potential duplication of work? Is there a risk of conflict with the commissioners and, if so, how will that be resolved? I beg to move.
Although the arrangements that we are putting in place allow flexibility, the border force will have primary operational responsibility for customs revenue functions at the frontier. Similar functions using the same powers will still be carried out by HM Revenue and Customs officials inland, however. For example, checks on goods and customs audits at business premises or warehouses, et cetera, will remain a matter for HM Revenue and Customs: the processing of customs freight declarations and collections of duties on freight, which is a centralised function, will also remain with that department, which will have all such functions. Therefore, we believe it absolutely vital that the Director of Border Revenue is able to exercise such functions concurrently with the commissioners for Revenue and Customs. While Amendment 16 would not, in itself, prevent this arrangement, it might lead to confusion about how those functions are exercised by the commissioners and the director respectively.
Amendment 17 would mean that the Director of Border Revenue could not collect customs or excise duties, or act to prevent the smuggling of dutiable goods. The functions of the commissioners on customs and excise duties are conferred concurrently on the director in the Bill to enable the border force to take day-to-day responsibility for all immigration and customs functions at the border, thus providing a fully integrated service. If Her Majesty’s Revenue and Customs remained responsible for customs and excise duty while the Director of Border Revenue were responsible for collecting other levies and duties at the border, it would not deliver the integrated service that we want to achieve, and it would certainly confuse the public. On that basis, I hope that the noble Viscount will agree that the amendment is unnecessary and inappropriate and that he will feel able to withdraw it.
Amendment 16 withdrawn.
Amendments 17 and 18 not moved.
Clause 7 agreed.
Clause 8 agreed.
Clause 9: Delegation of Director’s functions
19: Clause 9, page 6, line 38, leave out “or any other enactment”
This amendment would limit the powers of the Director of Border Revenue to delegate functions to those conferred under the Bill. It also probes which other functions it is intended to confer on the director. Again, we are wary of handing out powers that have yet to be defined or drafted, let alone presented to us, and would like to see an express limit on the delegation of the director’s functions. I would add that this amendment would leave out “or any other enactment”. The noble Lord, Lord Avebury, who is not in his place, raised this point. I should be grateful for a note on the relationship of the Carltona principle to any other enactment to see whether they are totally complementary. I beg to move.
I certainly will provide a note to explain that; it was explained to me only earlier today, as I was unaware of it before. This amendment would seriously impair the abilities of officials in the border force to perform their customs revenue functions. The Bill ensures that, by conferring them on the Director of Border Revenue, existing functions of the commissioners for revenue and customs may be delegated to others. Future enactments may, however, confer additional functions on the director and we believe it right that they should also be able to delegate those.
Even where a function is delegated by the director, Clause 9(3) requires them to maintain considerable control over how any delegated function is exercised, and requires the person to whom it is delegated to,
“comply with the directions of the Director”,
in that respect. Accordingly, it is appropriate that the director should be able to delegate functions granted to him or her under enactments other than the Bill. If any functions conferred in future enactments are so important that only the director must exercise them, those enactments can provide for it and preclude any form of delegation—that could be done if we felt it was so important. The sorts of functions that the commissioners currently delegate are the transport, custody and disposal of overseas goods and the transport of cash. The director will need similar flexibility in respect of any functions conferred by enactments other than in the Bill. For this reason I hope that the noble Viscount will agree that this amendment is inappropriate and that he will feel able to withdraw it.
I thank the Minister for his reply, having given him the opportunity to make it, but the sentiments that I expressed at the end of the debate on the previous group of amendments still apply. We shall look carefully at how these organisational arrangements within the UKBA turn out. In the mean time, I beg leave to withdraw the amendment.
Amendment 19 withdrawn.
Perhaps I may intervene briefly. I should have done this under Clause 8 and I am not in any way seeking to take us back there. The Delegated Powers and Regulatory Reform Committee report raises a matter on Clause 8. Unless the Government have already replied to that and the matter has been resolved, I shall raise it on Report.
Clause 9 agreed.
Clause 10 agreed.
Clause 11: Designation of customs revenue officials
20: Clause 11, page 7, line 25, leave out from beginning to “a” in line 28
This amendment probes a little more into what officers will do and asks why immigration officers or any other officials of the Secretary of State should be designated as customs revenue officials. We are clear now that we are to have one in three, or three people in one, as customs, revenue and immigration—or, we may have customs, immigration and revenue. If we are clear on that, will the Secretary of State be able to designate an immigration officer as a customs revenue official, as it seems to be the only thing she will be able to do? That would then be a dual role of customs and immigration. Or is this the power that will designate them as one into three? I know this is getting to be a bit like the Trinity, with one in three or three in one, but it is a short question.
We feel it is important to specify who the Director of Border Revenue can designate as a customs revenue official as well as setting out in Clause 12 that she needs to be satisfied that the officer is capable of carrying out the functions effectively, has received adequate training—we have heard that that is for 14 weeks, while the other, which I did not mention before, is for 10 weeks—and is a suitable person. All those things have to be done, but we have extremely talented people who are capable of multi-tasking. I have great faith that they will do this job extremely well. Some are, effectively, already doing it.
It is appropriate that designated customs revenue officials are within the department responsible for exercising customs functions. The border force will be an executive agency of the Home Office and will work within that department to ensure the main aim in creating the agency is fulfilled; namely, as the noble Baroness clearly mentioned, to integrate at the border the exercise of customs functions, both general and revenue, with immigration functions. In general, it is not intended that customs revenue officials should be a separate cadre; rather, that the officials of the Secretary of State working in the border force should, subject to that training, be able to perform a range of customs revenue, general customs and immigration functions as necessary. As I have said, we know how long the training will take and I am sure that they will be capable of that.
The noble Baroness, Lady Hanham, also asked whether the Secretary of State will be able to designate a customs revenue official. No, she will not: the director will make such designations. The officer will be accountable to the director for the exercise of those functions, not to the Secretary of State. That is one reason why we have had to have that differentiation, because that cannot be allowed. On that basis, I hope that the noble Baroness will agree that the amendment is unnecessary and that she will feel able to withdraw it.
Amendment 20 withdrawn.
Clause 11 agreed.
Clause 12: Designation: supplementary
21: Clause 12, page 8, line 37, leave out “the Director is satisfied that”
We have skated around the question of training on and off this afternoon, but these amendments direct us to it. Amendments 21 and 22 probe the standard of training to be provided and the standard of competence to be achieved before an immigration officer or other official may be designated by the Director of Border Revenue under the power in Clause 11.
We said on Second Reading that we would table amendments to satisfy ourselves about the terms and level of training. We now know the terms, because the Minister has given them to us, but we do not know the level or the content. One of our chief worries is that officials may be struggling with their existing duties. How are they then meant to understand, retain and apply borders, customs, immigration and, in some cases, police provisions all at the same time and ensure that they do not get into difficulties? We want to ensure that the standard of training is sufficiently rigorous to meet those concerns. That is why we suggest that the word “adequate” in page 8, line 41 should be removed and substituted with “all necessary”. Matters such as tax revenues, tax raising and all the other things that they are entitled to do and must do need to be included in training. We need to be sure that it will be more than adequate and that the director can be truly satisfied that all those who are to be the composite trinity know what they are doing. I beg to move.
The noble Baroness has raised an extremely important matter and we support the amendments. The provision is simply that the director must be satisfied, but we do not know what criteria will satisfy him; they are not laid down anywhere in the Bill. The word “adequate” is extremely vague, as the noble Baroness said.
Earlier, the Minister told us that customs officers who are to carry out UKBA duties would be given 14 weeks’ training, although he did not say what that training would consist of. If it were intensive training, I can imagine that 14 weeks may well be adequate. One knows that it is possible to have immersion courses that teach people a large amount of information in a short space of time, such as the Foreign Office has for language training. We need to know a little more about this before we leave the subject, because simply to have the wording in the Bill that the director must be satisfied without telling us how he will satisfy himself and the use of the vague word “adequate” will not reassure those who have to deal with the officials that they will receive top-quality training and that they will be as qualified as is necessary to enable them to do the job properly. I sincerely hope that we will receive a lot more information from the Minister in answer to the amendment.
I, too, support the amendment. I imagine that the job of an immigration officer can be very stressful. They have people from so many different situations coming to be interviewed. What psychological preparation is there for those who undertake that work so that they can cope with the stress? What linguistic preparation is there? Someone may have no knowledge whatever of the English language. What preparation is there so that those who deal with people who speak another language and are not able to converse properly in English can do so in a sympathetic way?
What the noble Lord, Lord Roberts of Llandudno, just said reinforces the point that I was trying to make on Second Reading and on many previous occasions about the importance of interpreters. The official on the job cannot be expected to know the whole range of possible languages that he may deal with. I say just one thing about drafting. I am pleased to see the words “is satisfied” in the Bill, because in previous legislation the much vaguer word “thinks” has crept in. “Is satisfied” is rather more precise.
I, too, back the amendment. The more one looks at it, the more one sees that there is a need to understand what is being said. For example, is 14 weeks the normal amount of training that other countries give officials undertaking similar jobs? If there were that sort of standard by which to measure, perhaps it would become a little clearer, so my instinct is to support the amendment.
I now have an answer to the question posed by the noble Lord, Lord Brooke. Apparently, the Government have replied to the Delegated Powers and Regulatory Reform Committee on Clause 8. I have not seen that reply and clearly neither has he, but apparently they have responded.
On the amendments, the clause already dictates that the director must be satisfied of the appropriate criteria, so in practice the director will be required to demonstrate an objective basis for concluding that any given person can exercise customs revenue functions appropriately. I mentioned the 4,500 who are transferring to the border force to carry out customs revenue functions. They will clearly already have been capably and appropriately trained by Her Majesty’s Revenue and Customs. Equally, those designated customs officials within the border force who have not transferred from HMRC will have been trained to the same level as the revenue and customs officers for the powers that they will be exercising and the activities that they will be carrying out.
The noble Lord, Lord Avebury, talked in particular about training. Training will be delivered by trainers accredited by HMRC. Trainees will be mentored by the personal training officer network, transferring from that department to the UK Border Agency. New recruits joining the border force who are deployed at the border will undertake an accredited foundation course including training to enable them to carry out customs revenue functions where that is a part of their role.
The way in which we resolve the language training issue—as the noble Lord, Lord Hylton, said, there are so many languages that you cannot possibly have someone there to cover them all—is by the use of interpreters. We can rapidly get hold of people who can interpret. That is how we get round that one. We do not have a specific language course for any of these people in their training.
Clause 12 already requires the director to be satisfied that a person has completed adequate training before the director may designate that person as a customs revenue official able to exercise customs revenue functions. For training to be deemed adequate, the definition is that it must provide a designated customs official with all the instruction and skills appropriate and necessary to exercise the customs revenue functions conferred on them fully and properly. As I said, that is monitored by the personal training officer network to ensure that it is done.
Amendment 22 does not in practice impose any different requirement from those already imposed by the Bill. On that basis, I hope that the noble Baroness will agree that the amendment is unnecessary. It is worth adding that the requirement in the clause mirrors that imposed in conferring customs functions on officers in SOCA. We have been doing that since 2005 and it is appropriate that the same standards should be required for officials designated under the Bill.
Before the noble Baroness, who has raised such interesting issues, comes back, may I ask a couple of questions? The wording in the Bill is pretty passive: the person must have “received adequate training”. It does not then give any benchmark about how they would have benefited from it if they were a candidate for this job and if they had passed the job test. They have only to have received the training. I may have missed something in what the Minister said. I am still not clear as to whether it is full-time or part-time training. If the individual has greater training needs, will they receive more than 14 weeks’ training?
Finally, could the Minister say something about what would happen if the person did not want to be designated? Will there be any issues around people who do not want to switch from their current job and who do not want to be trained? What sort of rights do they have? What sort of representations has the Minister received from the unions or from individuals on this issue?
Before the Minister replies, I wonder whether I can turn to a matter that the noble Lord, Lord Roberts, raised. The noble Lord asked whether people would receive any psychological training, presumably in their support. What about care of people who come within their remit or—to use a horrible jargon phrase—“customer focus”? These officers have a very difficult task. To some, they have to be an anodyne officer who looks at the passports or whatever and does not do anything. To others, they have to be able to answer difficult and searching questions. To some, they have to be, I suspect, abrupt and difficult. To others, they have to be extremely charming. What training will they get in people management? There was a time when all immigration officers were boot-faced and you never knew whether or not you had committed an offence as you went through. Now there is an easier attitude when you go through immigration and you get a smile from the immigration officer. That could change like the weather if it were not appropriate that they should smile. Where it is necessary for them not to be pleasant, respectful and welcoming, what training do they get in dealing with those more difficult situations?
I apologise for coming back again but the noble Baroness has jogged my memory. I am sorry that the noble Baroness, Lady Gibson, is not in her place, because she is chair of the all-party group on Latin America. When all the Latin American ambassadors came in and we asked them how the world was for them and what sort of complaints and issues were raised by their citizens, one of the issues at the top of their agenda was that everybody coming from their countries felt that there was little appreciation of the fact that Latin American people do not represent a terrorist threat; they felt judged by the colour of their skin. This is obviously a subjective issue, but it was striking that 18 ambassadors said that. That is the sort of training issue that is critical.
When you go into the United States, it is noticeable that the immigration officers there talk to you more than the ones here. They say, “Hi, where are you from? What are you here for?” and by the time they have checked your eyeballs and your fingerprints you have exchanged a lot of information with them, usually in a perfectly pleasant way. They seem to get a lot out of people from that chit-chat.
I suspect that there is a fear that some of those coming into the country from Latin America may be drug mules, for example, but that should not lead to an assumption that everybody coming from Latin America is in that category. Also, there are huge differences between one Latin American country and another.
A raft of points has been made. First, I was delighted that the noble Baroness, Lady Hanham, pointed out how cheerful and welcoming members of our border force are. I agree entirely. They are generally very good. I was interested that the noble Baroness, Lady Miller, said how welcoming the US immigration people are. She must have used a different airport from the one that I have always used. Possibly my problem was that on the green form where it said, “Are you or have you ever been involved in espionage?”—I was once Chief of Defence Intelligence—I put, “Yes”. That delayed me for some hours with some rather unpleasant people. That is another issue. One cannot tell fibs; one has to tell the truth.
The noble Lord, Lord Roberts, along with other noble Lords, correctly pointed out that this is a difficult and stressful job. There is policy, guidance and education available for personnel dealing with specific stressful posts. They are instructed on these things. There is also a business support team available to officers who are stressed or who have particular issues. They can raise these confidentially and they are dealt with. That is covered, therefore. There is also role-playing in the training, which is a good way of allowing these things to happen.
The noble Baroness, Lady Miller, asked whether there are people who do not want to move. There has been a lot of dialogue with the trade unions. It is clearly a major move for many people. That dialogue has been successful. Interestingly, an awful lot of the HMRC people who are coming into the new border force see themselves as border people rather than broader HMRC people. It has not been as big a chop as it might have been. There are issues over terms of service and pay and so on, which are still being negotiated and talked through, but we have not come across a real problem about any of these officers not wanting to do the job. They see themselves very much as wanting to be part of the border force and part of the protection—the front line, in a sense—for the United Kingdom.
I cannot give an answer on South America. Generally, our people are welcoming and have been well trained. The training is monitored. It is given by proper accredited trainers and it is then monitored by personal training officers. The training for immigration purposes will be on a similar basis to customs training, which will resolve that question. I hope that on that basis the noble Baroness will be content to withdraw her amendment.
I thank the Minister for a reasonably detailed reply. I did not expect him to go through the whole training manual, but we need to be satisfied that the training will be rigorous. I am not so concerned about those who will be coming in to the agency, because I am sure that by that stage the trinity will be composite. For the initial group, where the training involves officers who are doing a different job, it is vital that the training is done better than adequately. I do not like the word “adequately” in legislation. It seems to me to be the lowest common denominator for something that ought to be done to a high standard. That is why I prefer the wording that we suggested.
The Minister has, however, been helpful and I hope that we have managed to stress—and I hope that it will get through to those who are doing the training—that Parliament is concerned about the way in which these officers perform their duties. It is difficult to combine in one role both giving the first impression to people who are coming into the country and being the guardian of the borders. On this side of the Dispatch Box we would want to be sure that people are aware of that and aware that Parliament thought that it was important. I beg leave to withdraw the amendment.
Amendment 21 withdrawn.
Amendment 22 not moved.
Clause 12 agreed.
Clause 13 agreed to.
Clause 14: Use and disclosure of customs information
23: Clause 14, page 9, line 11, at beginning insert “not”
We touched briefly on these amendments when we went through the clause stand part debates, but I turn now to a very important aspect, that of information which can be passed on by a designated customs official, and to whom. The amendments would impose a statutory obligation on any person listed in subsection (2) to have grounds to be satisfied that the disclosure of customs information to any other person is “reasonable”. That is a fair test of what one would want to limit this to. It would require consideration of the need for disclosure and the sensitivity of the information. My concerns have been raised because the Government’s track record on keeping a hand on personal data is not very good, if not to say abysmal. We are therefore concerned that strict controls should be placed on information that is being recorded and computerised, as well as data giving personal information about people who come into the orbit of these officers. I beg to move.
These amendments would tighten up the provisions in the Bill for the disclosure of customs information. Clauses 14 to 20 deal with the disclosure of information between customs and immigration, and Clause 14(1) creates new powers for the use of disclosure of information. Designated customs officials, immigration officers, the Secretary of State or another Minister,
“by whom general customs functions are exercisable”,
the Director of Border Revenue and any other “person acting on behalf of” these people may use customs information that they have acquired through one function for the purposes of any of their other functions. Even more broadly, any of these people may disclose customs information to any other official for any exercisable function.
Once you give officials multiple functions, there is nothing to prevent them using information discovered or received under one function for the purpose of another. Allowing full disclosure between all immigration and customs officials goes even further. There needs to be proper justification for allowing complete information sharing and use between HM Customs and Revenue on the one hand and the Immigration Service on the other.
We have also had representations from the Law Society of Scotland which suggests that information subject to legal professional privilege should be expressly protected from the general disclosure provisions in these clauses. We would like the Government to explain whether, and if so to what extent, information subject to professional legal privilege is protected under the Bill and how this is to be specified.
The data sharing issues raise considerable concerns, some of which have been outlined by the noble Baroness, Lady Hanham, and by my noble friend Lord Avebury. The first stop when things go wrong is quite rightly the Office of the Information Commissioner. Given the increased amount of data sharing that is going to take place if the Bill goes through in its current form, may we know, first, what representations, if any, the Information Commissioner’s department has made to the Government about the Bill and what advice it has been given? Secondly, given the inevitable amount of extra work that will result from this, what extra resources are being given to the Office of the Information Commissioner, which is now severely stretched through having to deal not just with issues of data loss but also inappropriately used data? It is the one office in the entire rather gloomy data picture at the moment that does command public confidence, and I commend the Information Commissioner on developing the office as a repository of public confidence. But to continue in that role, it needs to be properly resourced.
The Government made a bit of progress when they accepted that the Information Commissioner should be able to make spot checks on public bodies and that there should be a system of penalties for officials who contravene any of the data protection provisions. But in order to put any of that into force, the commissioner and his office need to be properly resourced. I have strong concerns in that direction.
I rise to ask a question which is wholly incidental to these amendments. Is it a term of art or is there a matter of policy which causes in subsection (2)(c),
“the Secretary of State by whom general customs functions are exercisable”,
to appear halfway through the list below a designated customs official or an immigration officer? These officers have been set out in a rather curious order, so as a matter of curiosity I am inquiring into whether there is a reason for it.
I am sorry to rise again, but I think that the Minister may need to get a reply to this point. Perhaps I may address him to Clause 14(5), which relates to disclosure of information. It states:
“This section is without prejudice to”.
What on earth is the definition of “without prejudice” in this context? Who is the prejudice towards, and if there is no prejudice, why specify “without prejudice”? I know that it is a legal term which crops up fairly often, but I do not know why it is included here. I shall be extremely grateful for a reply.
Clause 14 will provide the border force with the ability to pool its customs information internally so that any such information acquired by a person to whom the clause applies can pass it to another person to be used for that other person’s function. The clause also permits any such person to disclose customs information to another person to whom the clause applies for any function exercisable by the recipient. This will enable the UK Border Agency to use its resources as effectively as possible by improving targeting and data matching across the full range of its immigration and customs functions. It will also improve customer service as it will prevent the agency having to request information from people more than once.
Amendments 23 and 24 would prevent those to whom Clause 14 applies from using or disclosing customs information, whether personal or not, unless satisfied that such use or disclosure is reasonable. However, customs information may be used only by a person to whom Clause 14 applies for one or more of the functions that he or she has been given, and if that person needs to use customs information for the exercise of any such function, I believe that by definition the use of it will be reasonable. Further, any use of information under Clause 14 would also be subject to the provisions of the Human Rights Act 1998 and the Data Protection Act 1998, and would thus be required to be both reasonable and proportionate.
The noble Baroness, Lady Miller, asked how much the Information Commissioner would be involved in this. I am not aware of how deeply he was involved in the discussion of the Bill, and I have the Bill team finding out if he was or was not. But, as I have said, this is covered by the provisions of the Human Rights Act and the Data Protection Act, so in the sense that it is covered, it means that obviously he will have an interest and a certain authority to supervise that the Act is being complied with.
I turn now to the disclosure of customs information. The data sharing framework established by Clauses 14 to 21 restricts the disclosure of personal customs information; that is, customs information that identifies or is capable of identifying the persons to whom it applies. I think that in that sense it applies to legal privilege. However, I shall get back to the noble Lord, Lord Avebury, on the particular point. It is absolutely right that the provision is protected in this way in the Bill.
Amendments 23 and 24 would restrict the disclosure of non-personal customs information such as statistical data. Those statistical data are crucial in informing policy development and refinement and there is no need to restrict their disclosure provided they go only to those people who need them for the functions they have been given.
Meanwhile, disclosure of personal customs information is tightly circumscribed under the Bill. Clause 15 imposes duties of confidentiality in respect of personal customs information generally and personal customs revenue information. The limited exceptions to those duties are set out clearly in Clause 16 and any disclosure made in accordance with those exceptions would certainly pass any test of reasonableness.
On the points made by a number of speakers about data protection, there have been bad examples in the past but the Government have now got to grips with the issue. The great danger for all of us is that we go down the route of thinking that we must not use data. If we do not use data, we will not get all of these efficiencies. The world has changed; we cannot turn back the clock. Certainly now, with the Cabinet Office review and the work going on across government, we are gripping the issue. However, this is not only a government matter; it is also a private one. People will need a complete mindset change to understand how important data are and how easy it is for people to get hold of their data. It is something that we all have to get to grips with but, as I say, the Government have learnt their lesson and are frantically trying to do this. But we are dealing with human beings, and sometimes private individuals are not very good at looking after their own data even. It is a big learning process and we have to go through that.
On the point made by the noble Lord, Lord Brooke, the list has been produced by parliamentary draftsmen. There are no policy implications but it is slightly extraordinary. I might dig a little deeper into that. It is like always having the Royal Navy to the right of the line. If someone put it the other way round I would be more than a little surprised. Lists have quite a significance sometimes.
The noble Baroness asked why the phrase “without prejudice” is used. As she rightly pointed out, it is a legal term. Apparently it ensures the continued application of existing provisions concerning confidentiality, and that is why it has been put into the Bill.
I think I have covered all of the questions. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
Before the Minister gives up completely, there seems to be a lacuna in the list which I hope he can fill. I come back to my “trinity”. Of the three individuals, subsection (2)(a) refers to a “designated customs official”, who I think is a part of the trinity. Is that correct? There is then an immigration officer, who is not a part of the trinity but an individual, and we do not have a customs and revenue officer or a general customs officer whose individual functions form the other parts of the trinity. Perhaps the Minister can explain.
I should make it clear to the noble Baroness that I never give up completely. In the bulk of these posts people will be capable of carrying out the duties of both immigration and customs. As I understand it, they will be a part of the border force immigration officers and will be able to carry out both functions. But not everyone will be designated. A small number of people will be left with specific responsibilities—dog handlers, for example—who, although they will be in the border force, will be customs officers focusing purely on the dog handling aspect. Rather than being a trinity, the designated customs officers are a duality of immigration and customs officer. I think that is the case but perhaps I may come back and clarify the situation before the next stage. We are aiming to ensure that the bulk of the people involved are capable of carrying out the customs and immigration functions. If we achieve that with each of the officers, it will give us huge flexibility and allow us to do so much more.
If there is some confusion in the text as to exactly how they are named, I shall make sure it is clarified. However, that is what we want the bulk of the people to be able to do and the detail we are looking at here is designed to enable that to happen within the correct legal and administrative constraints.
I thought we had clarified earlier who all these people were. We have a customs revenue officer, who has been transferred down from Her Majesty’s Revenue and Customs; we have a general customs officer, who has been passed down from Her Majesty’s Revenue and Customs; and we have an immigration officer. Many hours ago we established that those three positions could be either what I termed the trinity, or they could be individual immigration officers who just do immigration, individual customs officers who just do customs, and individual revenue officers who just do revenue—but all of these duties could be combined into one and so one person could do revenue, customs and immigration. If that is not correct, then I have misunderstood the whole of the last seven pages.
The only thing wrong with that is that there is not an individual revenue officer. There are customs and revenue officers, who we want to be able to be immigration officers, and there are immigration officers, who we want to be able to do customs duties; we do not have purely revenue officers. That is what I meant by a duality rather than a trinity.
Clause 11—“Designation of customs revenue officials”—states:
“The Director of Border Revenue may designate … any other official … by whom general customs functions are exercisable, as a customs revenue official”.
That seems to mean that a customs officer can also be a revenue officer or can be both, one or the other. Earlier we had the designation that a general customs official, who comes from the customs, can be a revenue official. So we have established that two are going into one, and the immigration function makes it three into one.
Somebody needs to clear this up because either I am going to extremely confuse the Committee, or I am extremely confused, or the legislation is extremely confused. I would hate it to be the latter. We need to be extremely clear what we are talking about because, on the point that I have just raised about the designated customs official, the revenue official will not be allowed to have any say in the information coming down under Clause 14.
I want to make absolutely certain that what I said was correct. We have customs and revenue officers; we do not have revenue officers. There is no such thing as a revenue officer; they are customs and revenue officers. We want to train officers from within Her Majesty’s Revenue and Customs to do immigration. We hope that will be done in the border force and that the immigration officers will be trained to do revenue and customs duties. So that is how we will make them all the same. But there are only two skills; there are no separate revenue officers. I think that is where the confusion lies.
I shall leave the matter for the moment. I am deeply unconvinced, which is not a position I usually find myself in when dealing with the Minister. But as this is germane to this part of the Bill, perhaps someone will be extremely kind and send me a note of how this is working out so that we can put it on record somewhere sometime. Otherwise, the confusion will continue. I beg leave to withdraw the amendment.
Amendment 23 withdrawn.
Amendment 24 not moved.
25: Clause 14, page 9, line 21, leave out paragraph (f)
Amendments 25 and 26 would limit the people to whom disclosures may be made to designated customs officials, immigration officers, the Secretary of State by whom general customs functions are exercisable, Ministers in his or her department and the Director of Border Revenue. Amendment 26 probes why restrictions in Part 1 or in other enactments or agreements—I refer to subsection (3)— should not apply to the disclosure of other information as well as customs information.
We have discussed the track record of the Government and we feel that Clause 14 should be drawn as narrowly as possible. I beg to move.
I am afraid again I must resist this amendment. The UK Border Agency or the border force must have flexibility to respond to the ever-changing challenges of protecting our borders. From time to time, the agency will need to use contractors to support and supplement its own staff. It is only right and proper that where the agency needs to do that, the contractors concerned should be able to use and disclose any customs information in so far as that is necessary for them to fulfil their contractual obligations. Any such contractor will be subject to the provisions in the Bill regulating the use and disclosure of customs information, including Clause 18, which establishes a criminal offence of wrongful disclosure. Existing arrangements between the UK Border Agency and its contractors already include provisions to protect information and regulate the circumstances in which it is used and disclosed. Contractors in breach of these confidential provisions face the appropriate action, which could include dismissal, termination of contract and, of course, prosecution.
I regret that I must also resist Amendment 26 because it is unnecessary. Clause 14 applies, and is intended to apply, to the use and disclosure of customs information only. Clause 14(5) is intended to clarify, and the removal of that clarification would be likely to cause confusion as to the type of information to which Clause 14 and the wider provisions in the Bill dealing with the use of disclosure of information apply.
It may be that the intention underpinning Amendment 25 is to ensure that Clause 14 and the wider data-related provisions that I have referred to, apply to immigration, asylum and nationality information as well. Such information has never previously been subject to a distinct disclosure regime, but is regulated instead by the provisions and safeguards in the Data Protection Act 1998 and the Human Rights Act 1998, which I have already referred to, and we do not propose any change to that approach now.
Even if I have correctly identified the intended purpose of Amendment 25, it does not achieve that purpose in practice. The removal of Clause 14(5) will make no practical difference to the circumstances in which immigration, asylum and nationality information may be used and disclosed. I therefore believe that Amendment 25 is unnecessary. For those reasons, I hope that the noble Baroness feels able to withdraw her amendment.
Amendment 25 withdrawn.
Amendment 26 not moved.
Clause 14 agreed.
Clause 15 : Prohibition on disclosure of personal customs information
27: Clause 15, page 10, line 36, leave out subsection (5)
This would remove the exemption from the prohibition of disclosure of personal customs information where the information was obtained by means other than exercising customs or customs revenue functions. The definitions are in Clause 36.
We are concerned that the transfer of functions to officials allowed by Part 1 blurs the appropriate boundaries for the sharing of information around government departments. I beg to move.
Again I am afraid I must resist this amendment. The statutory duty of confidentiality in Clause 15 seeks to protect personal customs and personal customs revenue information from disclosure, except in the limited and defined circumstances where disclosure is specifically permitted. This reflects the fact that such information, which may include taxpayer information, should be protected from disclosure in the same way as that information is protected by Her Majesty’s Revenue and Customs. Therefore when the border force acquires such information, it will be subject to the statutory duty of confidentiality, unless it is clear that it acquired the information other than in the exercise of the customs function or customs revenue function.
However, immigration, asylum and nationality information has never been subject to a distinct statutory confidentiality regime, and therefore we do not think it appropriate or necessary to impose the same duty of confidentiality in relation to this information as applies to personal customs and personal customs revenue information. When the UK Border Agency acquires information in the exercise of its non-customs functions, such information is protected from unlawful disclosure by the provisions and protections inherent in the data protection and human rights legislation. I hope that the noble Baroness feels able to withdraw this amendment.
Amendment 27 withdrawn.
Clause 15 agreed.
Clauses 16 and 17 agreed.
Clause 18 : Offence of wrongful disclosure
Amendment 28 not moved.
Clauses 18 to 21 agreed.
29: After Clause 21, insert the following new Clause—
“Application of the PACE orders
(1) Subject as follows, the PACE orders—
(a) apply to criminal investigations conducted by designated customs officials and relating to a general customs matter or customs revenue matter as they apply to relevant investigations conducted by officers of Revenue and Customs, and(b) apply to persons detained by designated customs officials as they apply to persons detained by officers of Revenue and Customs.(2) Each of the following is a PACE order for the purposes of this section—
(a) the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (S.I. 2007/3175);(b) the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464).(3) In the application of the PACE orders by virtue of this section—
(a) subject to the following provisions of this subsection, references in those orders to an officer of Revenue and Customs are to be read as references to a designated customs official;(b) references in those orders to the Commissioners are to be read as references to—(i) the Secretary of State in relation to general customs matters, or(ii) the Director of Border Revenue in relation to customs revenue matters;(c) references in those orders to Her Majesty’s Revenue and Customs or to Revenue and Customs are to be read as references to—(i) the Secretary of State in so far as the Secretary of State has general customs functions,(ii) the Director of Border Revenue, and(iii) designated customs officials;(d) references in those orders to an office of Revenue and Customs are to be read as references to an office of the UK Border Agency;(e) references in those orders to a designated office of Revenue and Customs are to be read as references to a designated office of the UK Border Agency;(f) references in those orders to a relevant indictable offence are to be read as references to an indictable offence that relates to a general customs matter or a customs revenue matter;(g) references in those orders to a relevant investigation are to be read as references to a criminal investigation conducted by a designated customs official that relates to a general customs matter or a customs revenue matter;(h) references in those orders to a person being in Revenue and Customs detention are to be read as references to a person being in UK Border Agency detention;(i) references in those orders to an officer of Revenue and Customs of at least the grade of officer are to be read as references to a designated customs official of at least the grade of immigration officer or executive officer;(j) references in those orders to an officer of Revenue and Customs of at least the grade of higher officer are to be read as references to a designated customs official of at least the grade of chief immigration officer or higher executive officer; (k) references in those orders to an officer of Revenue and Customs of at least the grade of senior officer are to be read as references to a designated customs official of at least the grade of immigration inspector or senior executive officer;(l) any other references in those orders to an officer of Revenue and Customs occupying a specified post or grade are to be read as references to the Secretary of State.(4) For the purposes of this section—
(a) a person is in UK Border Agency detention if—(i) the person has been taken to an office of the UK Border Agency after being arrested for an offence, or(ii) the person is arrested at an office of the UK Border Agency after attending voluntarily at the office or accompanying a designated customs official to it,and is detained there or is detained elsewhere in the charge of a designated customs official, and(b) “office of the UK Border Agency” means premises wholly or partly occupied by designated customs officials.(5) This section does not apply to the following provisions of the PACE orders—
(a) in article 2(1) of the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (S.I. 2007/3175), the definitions of “the Commissioners”, “office of Revenue and Customs”, “relevant indictable offence” and “relevant investigation”;(b) article 2(2) of that order (Revenue and Customs detention);(c) article 7 of that order (restriction on other powers to apply for production of documents);(d) article 19 of that order (authorisation);(e) in article 2(1) of the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464), the definitions of “the Commissioners”, “office of Revenue and Customs”, “relevant indictable offence” and “relevant investigation”;(f) article 2(2) of that order (Revenue and Customs detention);(g) article 7 of that order (restriction on other powers to apply for production of documents);(h) article 15 of that order (authorisation).(6) A person may be transferred—
(a) between UK Border Agency detention and Revenue and Customs detention;(b) between Revenue and Customs detention and UK Border Agency detention;(c) between UK Border Agency detention and police detention;(d) between police detention and UK Border Agency detention.(7) The references to police detention in subsection (6)—
(a) in relation to England and Wales, are to be construed in accordance with the Police and Criminal Evidence Act 1984 (c. 60);(b) in relation to Northern Ireland, are to be construed in accordance with the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).(8) Expressions used in this section that are defined in a PACE order have the same meaning as in that PACE order.
(9) This section does not affect the generality of sections 1(4), 3(5), 7(5) and 11(4) (construction of statutory etc. references to the Commissioners for Her Majesty’s Revenue and Customs, officers of Revenue and Customs and Her Majesty’s Revenue and Customs).”
I shall deal with government amendments 29 and 32 together as they are related. In bringing Revenue and Customs functions within the remit of the border force, officials of the UK Border Agency will be given the same or similar powers to those used at present by officers of Her Majesty’s Revenue and Customs. The Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 and the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007, which I shall refer to for these purposes as the Revenue and Customs PACE orders, provide that the application of important powers and safeguards relating to the investigating of offences are applied to HM Revenue and Customs. These include powers for the investigation of Revenue and Customs offences at the frontier and elsewhere and for the designation of custody suites and custody officers, as well as for the application of safeguards in relation to those persons who have been detained.
We need to ensure that in so far as they will in future be investigating and detaining people for the same offences, and exercising the same functions at the border as officers of HMRC do currently, the designated customs officials of the border force have the same powers and are required to provide the same safeguards. It is our intention, therefore, that the vast majority of the substantive provisions of the Revenue and Customs PACE orders should apply in future to criminal investigations in relation to customs matters conducted by designated customs officials of the border force, as well as to any persons detained by such officials.
Certain provisions in the Revenue and Customs PACE order are excluded. This is because they are unnecessary or they relate to investigative tax functions and will not be required by the UK Border Agency. For example, the powers relating to production orders in tax investigations are not applied to the UK Border Agency because it would not be appropriate to do so.
In summary, this clause effectively applies the bulk of the provisions of the Revenue and Customs PACE orders to designated customs officials in the UK Border Agency exercising equivalent functions. It will ensure seamless applications of PACE to those officers transferring from HMRC to the UK Border Agency, until a further bespoke PACE application order is made in relation to the border force customs and immigration functions under Clause 22.
As a consequence of the introduction of the new clause on the application of PACE that government Amendment 29 seeks to insert in Part 1, we have also tabled Amendment 32.
Amendment 32 inserts a new subsection into Clause 22. This new provision will enable an order made under Clause 22 to amend or repeal the new clause on the application of PACE, the detail of which I have just outlined. As I mentioned, Amendment 29 will enable the transfer of HMRC officers to the UKBA, while keeping all their existing powers, until a further bespoke PACE application order is made under Clause 22. We also intend to use the order-making power under Clause 22 to replace the Immigration (PACE Codes of Practice) Direction 2000 and the Immigration (PACE Codes of Practice No 2 and Amendment) Direction 2000 made under Section 145 of the Immigration and Asylum Act 1999. In doing so, we will also seek to bring together in one place the PACE powers and safeguards to be applied in relation to the border force customs and immigration functions.
Amendment 32 ensures that the order-making power in Clause 22 is sufficiently flexible to deliver that objective. I would ask the Committee to accept Amendments 29 and 32.
It is not that we object to the extension of PACE to officers; it is that we are concerned that these officers should be in the position of police, which is effectively what they now are. PACE already applies to immigration officers, because they are given the power of arrest, and that is what will happen with these other officers. So there is a great extension in the number of those with the power of arrest and detention of people coming through the immigration and border system. If those powers are to be there, then PACE must apply, because PACE is the safeguard to ensure that people are properly dealt with and protected to some extent by a code of conduct and code of practice.
This brings us back to an earlier amendment. We should have police embedded within the border agency so that we do not have to give police powers to other officials regardless of the role they are operating in. It is a great and worrying extension of police powers to other people. I think that we are in danger of removing the distinction between criminality and immigration control. I am sure that the Minister will explain the Government’s rationale. However, this means that we are extending—under previous clauses, I think—to immigration officers and to customs and revenue officers the power to arrest people. If the Minister had not produced this amendment, there is no doubt that someone else would have done. It is clear that we have to discuss the whole issue of PACE and where it applies. We are very uncomfortable about the extension of these PACE powers. I remain very concerned about the reasons given for extending them.
We are grateful to the Minister for his letter about these amendments, but we note that only the PACE provisions specified in subsection (2) apply immediately on Royal Assent. We would like to know why the provisions of PACE identified in subsection (5) are expressly excluded from application to designated customs officials. PACE standards are to be applied to immigration officials only when they are acting as designated HMRC officers and not when they are performing any of their existing functions under the Immigration Acts. We will come on to that in the next group of amendments.
Meanwhile, we also note that the amendment to Clause 22 would allow the Secretary of State to amend or repeal by order the new clause under discussion. We would like more information about the Government’s thinking and how they expect to use this virtually unlimited power. Are they committed to maintaining the application of the PACE provisions to designated customs officials? If so, why is there a necessity for such a broad power as they are asking for in Amendment 32?
The noble Baroness, Lady Hanham, has mentioned concerns. I should like to mention concerns about security organisations and subcontractors. On Second Reading, various examples were given of harm caused to individuals from escorts and all sorts of transport during detention. I realise that we are dealing specifically with ports, but I should like to hear confirmation from the Minister that this extension of powers under the PACE regulations, although welcome in itself, will cover these security firms and that adequate training is being given to anyone acting on behalf of revenue and customs officials.
I need to clarify that there is no extension: the officials affected by this amendment will be carrying out functions that are currently conducted by HMRC, and to which PACE already applies. Basically, this will enable them to do what they can already do but in the context of the border force. That is why the provision is being made. It enables them to fit in as part of the border force. It is not growth involving other people, as the HMRC can already do this. These HMRC officers are now becoming part of the border force and, in that context, they need these PACE powers. That is why this has been put in place.
The noble Lord, Lord Avebury, asked about subsections (2) and (5) but I do not know the answer, and I notice that the Box does not seem to have it either. Perhaps I can come back to him on that specific issue.
On contractors, I think that an amendment further downstream will address the issue. However, the intention is that the amendment will not give them those powers. Perhaps we can discuss it when we reach that amendment.
Amendment 29 agreed.
Clause 22: Investigations and detentions: England and Wales and Northern Ireland
30: Clause 22, page 15, line 18, leave out “may” and insert “must”
I hope that the noble Earl, Lord Sandwich, will say a few words on this amendment, part of which is relevant to the considerations that he has already raised.
As we have said, we have no objection in principle to the steps being taken in the Bill towards what we have envisaged as a UK border force, and that has been our party’s policy for the past couple of years. Our concern is that immigration officers will be given revenue and customs functions but without the appropriate accountability and safeguards. The purpose of Amendment 30 is to change the power to apply the PACE codes to the acts of customs officials and immigration officers to a duty. The purpose of the second amendment, as I am sure the noble Earl, Lord Sandwich, will be pleased to hear, is to ensure that private contractors exercising functions in connection with investigations or detention will also be subject to the PACE codes.
The Police and Criminal Evidence Act 1984, which came into effect after the civil unrest of the early 1980s and the recommendations of the Scarman report, protected both police officers and those being dealt with by the police, by introducing codes of practice regulating the use of police powers, notably in sensitive areas such as stop and search, arrest, detention and questioning. Immigration officers now exercise almost the same powers in relation to potentially vulnerable people and for their own protection as well as that of the person who is the target of these powers, the PACE codes of practice should apply to them. So we very much welcome the Government’s decision in Amendment 29 to apply the PACE orders specified from Royal Assent, though some of the gilt was taken off the gingerbread by the power to amend or repeal that new clause.
The PACE codes themselves can be amended from time to time, but if the Secretary of State is to be given absolute discretion to apply them only to the extent that she thinks proper to UKBA or HMRC officials exercising similar powers of search, detention, treatment and questioning of suspects or the recording of interviews, we can have no great confidence in her commitment to the principle. We should bear in mind the history of the matter: the Immigration and Asylum Act 1999 gave the Secretary of State power to apply full or modified versions of the PACE codes to immigration officers’ powers of arrest, questioning, search or taking a person’s fingerprints, entering or searching premises or seizing property, but in fact only two orders were ever made under that provision, the last in 2001. Ministers have repeatedly said, whenever immigration legislation has come before Parliament, that further orders were under review, but have done nothing as the exercise of police powers by immigration officers and private contractors has increased with every Act.
Immigration officers have numerous police and police-like powers, including the power to arrest with and without a warrant; to search and arrest without a warrant; to enter premises and make an arrest; to search premises; to search personnel records with and without a warrant; to search arrested persons and those in custody; to seize material; to detain; to search detained persons and retain evidence; and to fingerprint persons—and the use of force in the exercise of all those powers is expressly sanctioned. That extends to the private contractors, who may exercise several of those powers. While many of the powers relate to immigration-related offences, those who may be subjected to them include British citizens as well as foreign nationals, children as well as adults. Some of the powers have no specific relation to immigration-related offences, such as the power to detain someone at a port for up to three hours on suspicion that he may be of interest to the police and to retain evidence revealed from a search of that person.
During the passage of the earlier UK Borders Bill through both Houses, Ministers stressed the importance of much stronger oversight, transparency and accountability of what is now the UK Border Agency. That will not happen, however, if we have no certainty that officials exercising the even greater powers that they are now to be given are not subject to the standards expected of the police in exercising the same or similar powers.
At Second Reading the noble Lord, Lord Ramsbotham, drew attention to a dossier containing the details of 48 alleged assaults on asylum seekers by security guards, which he passed to the Home Secretary in July last year. That is still being investigated by Dame Nuala O’Loan. My noble friend Lord Thomas of Gresford also drew attention to the operation of secret and unlawful immigration policies revealed in the December 2008 judgment of the High Court in R v Abdi and others. On 18 February this year, the High Court ruled in yet another case, where a policy was not publicly disclosed and was relied upon unlawfully in circumstances where serious allegations of mistreatment were made. These policies relate to detention and removals respectively, so there is abundant evidence to demonstrate the necessity of clear and publicly available guidance and instructions to immigration officers, and to private contractors exercising immigration powers, that accord with the standards expected of police officers in exercising similar powers.
As the late Lord Williams of Mostyn recognised on behalf of the Government as long ago as 1999, the adoption of PACE codes of practice is necessary—and, 10 years later, is seriously overdue. If immigration officers and private contractors are not sufficiently trained or competent to be made publicly subject to PACE, they ought not to be exercising the powers that they already have, let alone those that they will be given under the Bill. I beg to move.
I apologise to the noble Lord, Lord Avebury, for jumping the gun. This is precisely what I was aiming at, and he has expressed it much more lucidly. It is important that he read out those powers one by one, and his reference to Lord Williams of Mostyn is very relevant because it speaks of the exercise of officials’ duties in addition to the actual powers involved.
This is a de minimis point, but just as the price of liberty is eternal vigilance so the same applies to syntax and/or style. Amendments 30 and 31 need what I shall call “Amendment 30A”, a paving, consequential amendment that would omit “or” at the end of line 24.
The effect of Amendment 30 would be to place a duty on the Secretary of State to make an order applying provisions of the Police and Criminal Evidence Act 1984 and the equivalent instrument in Northern Ireland to investigations conducted by designated customs officials and immigration officers and to persons detained by those officials or officers.
As I mentioned in discussing Amendment 32, we will make an order under Clause 22 to replace the Immigration (PACE Codes of Practice) Direction 2000 and the Immigration (PACE Codes of Practice No. 2 and Amendment) Direction 2000, made under Section 145 of the Immigration and Asylum Act 1999. In doing so, we will also seek to bring together in one place the PACE powers and safeguards to be applied in relation to the UK border force and its immigration functions. We believe that the approach in Clause 22 is the right one, mirroring as it does the construction of similar enabling provisions within PACE itself—for example, within Sections 114 and 114A—and that Amendment 30 is therefore unnecessary.
It is also proposed that the scope of the order that may be made under Clause 22 should be extended to cover contractors providing services relating to investigations conducted or persons detained by immigration officers and designated customs officials. There is an important distinction between the nature of the services provided by contractors and the exercise by immigration officers and designated customs officials of their functions and powers related to criminal investigations. Contractors are not charged with the duty of investigating offences, nor do they have the legislative responsibility of custody officers. The responsibility for those matters will lie instead with the designated customs official or immigration officer in charge of the relevant investigation or detention, as the case may be. Accordingly, the responsibility for ensuring that any services ancillary to the investigation or detention that a private contractor will supply will, and should, rest with the customs official or immigration officer concerned and not with the contractor. We do not agree, therefore, that this amendment is necessary or appropriate.
Most people detained by immigration officers are held in connection with administrative immigration processes rather than as part of any criminal investigation, and it would not be appropriate to apply the provisions of PACE or PACE Northern Ireland to those administrative processes or to any persons detained in connection with them, nor is it intended that any order made in due course under Clause 22 of the Bill should alter that position.
Arrangements are also made under Section 40 of the Immigration, Asylum and Nationality Act for the Secretary of State to authorise contractors to search ships, aircraft, vehicles and so on for the person subject to control by an immigration officer. Arrangements under Section 40 must include provision for the appointment of a Crown servant to monitor the exercise of the powers, inspect the exercise of the powers and investigate and report to the Secretary of State about any allegation made in respect of an authorised contractor. We consider that it is right to distinguish the limited operations of those authorised by the Secretary of State to search under Sections 40 and 41 of the Immigration, Asylum and Nationality Act from the activities of immigration officers who arrest individuals as part of their enforcement functions under their administrative and criminal powers.
In respect of customs functions, where contractors are used to provide services relating to custody or escort functions, the PACE codes make clear that the custody officer remains responsible for making sure that the procedures and tasks are carried out correctly and in accordance with those codes of practice. The lines of accountability are clear and remain with the law enforcement officer. In addition, many police forces already contract out these functions without any need for legislation, as does HRMC, at the Colnbrook centre, near Heathrow. In the light of this explanation, I hope that the noble Lord will feel able to withdraw his amendment.
I am afraid that I cannot take great satisfaction in the noble Lord’s reply. Although he tells us that the PACE codes of practice are to be extended to private contractors, there are certain exceptions in his comments which cause me tremendous anxiety. In relation to the private contractors who are employed in escorting duties, many complaints have been made, as the noble Lord might be aware, about assaults on persons being deported under the care of private contractors who are acting on behalf of the Immigration Service.
In a recent report, it was found that some 3 per cent of all complaints by detainees related to assaults that were made on them during the process of deportation. Considering that it must be extremely difficult for someone who has been deported to formulate such a complaint, the true percentage is probably much higher. If the private contractors charged with those duties are to be excluded from the PACE codes, we would very much deplore it.
However, there is a more fundamental difficulty. The noble Lord has told us that the PACE codes of practice which relate to the UKBA will be brought together, consolidated and made available to the public. However, we have not seen it and if all that is on offer is consolidation of the existing PACE codes, we know that they are inadequate.
We were thinking of a set of codes that were far more similar to those that apply to the police, considering that, as I have already mentioned, so many powers that the immigration officers exercise are tantamount to police powers. Therefore, they need to be dealt with in a similar manner by the PACE codes of practice. If the Minister could let us have the consolidated PACE codes that will apply to the UKBA between now and Report, that would be extremely useful. We will then be able to take advice on them and see whether they satisfy those who are pointing us in the direction of much greater restrictions on the use of powers by immigration officers and more forceful scrutiny by outside agencies. Meanwhile, I beg leave to withdraw the amendment.
Amendment 30 withdrawn.
Amendment 31 not moved.
32: Clause 22, page 15, line 42, at end insert—
“( ) An order under this section may amend or repeal section (Application of the PACE orders) (application of the PACE orders).”
Amendment 32 agreed.
Clause 22 agreed.
House resumed. Committee to begin again not before 8.33 pm.