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House of Lords Hansard
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Borders, Citizenship and Immigration Bill [HL]
25 March 2009
Volume 709

Report (1st Day)

Amendment 1

Moved by

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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.”

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My Lords, we had an interesting debate on this amendment in Committee but I am still at a loss to understand—despite the Minister’s long reply, for which I thank him—why the Government are going to such lengths to create only half of what is necessary to establish the security of our borders. The reason for returning to this issue is not to be stubborn but because I am genuinely puzzled as to why the Government have proceeded with the provisions in all 37 clauses in Part 1 to bring together personnel from Her Majesty’s Revenue and Customs with those already employed on immigration, to increase the role of both in providing support to the UK Border Agency, which deals with customs and immigration but has no incorporated police element.

I understand the need for this legislation, which has clearly been brought about with some speed because the UK Border Agency, which includes personnel from Her Majesty's Revenue and Customs, is already operating in shadow form. The implementation process of Part 1 must proceed if the moves, which have already been made, are to have any legal force. The cart of opportunism seems to have been put before the horse of coherence.

My party gives no ground to anyone in its determination to see that our borders are policed and administered in such a way as to protect our island from terrorism, serious crime, trafficking, drugs and all the other aspects of crime, including unauthorised immigration, which the Minister laid out in his response to the debate in Committee. In this regard, we believe that the powers should be enlarged to extend the remit of the border force to investigate those who may be encouraging illegal immigration and to ensure that those who come here and have no right to remain are removed—something that is singularly lacking under present arrangements and which is surely germane to the control of who is in this country.

There is no disagreement between my party and the Government about the need for robust and foolproof measures. There is, however, a mismatch between us on who should be involved in carrying them out. I was grateful in Committee for the almost support of the Liberal Democrats, who tacitly agree that a unified border force should be the ultimate goal. Although their ideas may not run along identical tracks to ours, they seem to be somewhat closer to our view than the Government’s. I ask the Government again why this is so. It is abundantly clear from the Minister’s long reply in Committee that huge efforts are having to be made to ensure that the police are working not as an integral part of the border agency but at a tangent to it. The Minister referred to a senior chief constable being a member of the UK Border Agency’s board. He also told us that 280 police officers had been seconded to local immigration teams,

“up and down our country”.—[Official Report, 25/2/09; col. 213.]

However, this is a tiny part of what needs to be done in a united and cohesive way.

The noble Lord, Lord Stevens of Kirkwhelpington, conducted a detailed inquiry for David Cameron into the safety and security of our borders. It is a published document of which I am sure the Home Office, if not the Minister, has had sight. Although a little time has passed since it was produced, the noble Lord’s observations remain relevant today. He said that,

“failure to take this opportunity to bring all the services involved in securing the border together in a single agency carries several challenges”.

I will not go into all the challenges that the noble Lord mentioned, but it is worth citing a few: the lack of a comprehensive overarching strategy; inefficiency in the sharing of information and the development of intelligence; a focus on narrow issues that have an impact on the work of individual agencies rather than a focus on the overall UK border security effort; and the inefficient use of resources, both human and financial. He concluded in this part of his report:

“The creation of a single border agency responsible for all immediate tasks required to secure the borders should provide a positive public perception of the services being provided and improve confidence in the efforts being made to protect national wellbeing, and in the Government’s ability to exercise proper control. Equally important, a more coherent, comprehensive and robust regime should also have a similar effect in terms of deterring criminal activity”.

I am sure that no one in this House would disagree with him.

Although we are not entirely reliant on his conclusions, my party strongly believes that, in the piecemeal reform that is before us again today, the Government have missed the opportunity to bring about a totally coherent system to protect our borders.

Finally, my other amendments would require consultation with other bodies before additional functions were included among those listed. They recognise that this is a developing field. Those who want to breach our border controls are constantly devising new ways of doing so. This will never be a static situation.

Whether or not we continue this debate in the House today, it will continue largely because of this missed opportunity in the Bill. We have today rushed through provisions against the background of a shadow organisation that has already been set up. The detailed consultation on this should continue. The Government are making a mistake in not ensuring that the border police are the force of our borders but at some stage it will come about. I beg to move.

Amendment 2 (to Amendment 1)

Moved by

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2: Before Clause 1, line 4, leave out subsections (2) to (4) 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; and(d) maintaining and improving a safe, ordered and secure environment in ports.”

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My Lords, I agree with the noble Baroness’s concluding remark that there is a need for more consultation. I hope, as a result of the discussions we had in Committee and the ones we are going to have this afternoon, that that will be the next step in thinking about a unified border force. As the noble Baroness has already said, this was the first amendment that we discussed in Committee and it would be remarkable if anybody had anything radically new to say about it—we spent, I think, an hour and three-quarters debating it and the Minister dealt thoroughly with Clause 1 and gave a general review of how Part 1 will operate. We all agreed that the protection of our borders is of vital national interest; the noble Baroness reiterated this proposition in her speech.

The two main themes of the Minister’s response were, first, that the police were already working very closely with the border force at every level and, secondly, that the amendments—both the ones tabled by the Conservatives and ours—left many issues that needed to be resolved. For example, who will be the head of the unified force? Should that person be a chief constable? Who will be responsible for the discipline of the police to be added to the force? Will the IPCC or some other body have jurisdiction over complaints against those officers? Will the police in the unifying force cover protection of the infrastructure of the counterterrorism force and general crime and disorder there? We take a different view from the Conservatives, as I tried to explain in Committee. While we share the long-term objective that there should be a unifying force, we look at Part 1 as being an important step towards that ultimate goal. We were encouraged that nowhere in his lengthy remarks did the Minister query that proposition in principle.

Our two main objections to the noble Baroness’s amendment were that some of the functions that the Tories wanted to give their UK border police force went beyond the protection of our borders and the issues involving employers of illegal immigrants and the internal policing of human trafficking, extending into matters that were the result of the failure to protect our borders adequately but were not about present-day protection of those borders. As I also mentioned in that debate, there is the vital question of how the unified border force will operate in Scotland, where the police come under the jurisdiction of the Scottish Parliament. From the inquiries that I have made via Scottish Lib Dem colleagues, the matter has not been discussed by the Scottish Parliament and, if for no other reason than that, it would be premature to make decisions here that took their agreement for granted.

In our previous debate, the Minister said that the Government intend to pursue a phased approach to the enhancement of our border security. The approach will concentrate on counterterrorism, including joint operations between the police and the border force, and intelligence sharing between them. He referred to measures in the Policing and Crime Bill, which deal in particular with security at airports. I have read Clause 76 of, and Schedule 6 to, that Bill and did not see anything that reads across into the matters with which we are dealing under this Bill. I do not question the Minister’s assurance that there will be close co-ordination between the police and the border force, but it would be interesting to hear more about what he called the “even more practical improvements” that emerged from the conference being held on the same day as our debate, 25 February.

As we see it, the Government are taking the pragmatic view that the Immigration Service and HMRC need time to digest the far-reaching changes that are being imposed in Part 1 and to explore with the police any non-statutory arrangements that can be made for the closer collaboration that is necessary and desirable between them. However, at the same time, they are not ruling out the creation of a unified border force to bring in the police at a later date. If it can be shown that that is the most effective way to protect our borders, that will be the way to go. We accept that challenge and will seek to launch our own study to see how far we can get ACPO and the Association of Police Authorities to agree on what the next step should be. In the mean time, we do not intend to press our amendment to a Division.

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My Lords, I support my noble friend’s Amendment 2, as an amendment to Amendment 1, because it is preferable to Amendment 1 as proposed by the Conservatives. The whole attitude is different: it is positive and constructive. Our first proposal in the amendment is for the UK border police force to protect UK borders, which is important. The Conservative amendment first proposes,

“detecting and removing illegal overstayers”.

That is a sort of Alf Garnett approach, suggesting a desire to grab headlines, such as “Tories want to see overstayers expelled” and that sort of thing. Our approach is more rational, progressive and constructive. If there is a vote—I do not think that there will be—I would say that the Liberal Democrat amendment is far superior to that of the Conservatives.

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My Lords, in rising to speak to these amendments, I do not intend, with your Lordships’ agreement, to get involved in a party-political spat. I want to comment on the place of the police within a border agency. I spoke on this in Committee on 25 February, when I supported a single all-embracing border agency, as outlined in the Stevens report, to which reference has already been made today. As I said at the time, that would ensure a number of things. It would ensure that effective counterterrorism measures could be taken. It would confidently allow us to combat other serious and organised crime, and prevent the importation of illegal drugs, illegal weapons and people trafficking. It would try to do quite a lot to prevent smuggling and protect the UK tax base. It would protect us against illegal immigration in all its forms and certainly would address environmental control and protection issues.

Significantly, I said at that time that the Association of Chief Police Officers supports the concept of a single agency, including the police within such a border agency. The Minister challenged that view at cols. 214-15 of the Official Report on 25 February 2009. I repeat today that it is the stated view of ACPO that it supports a single agency, including the police within that body. I checked immediately after the Committee stage and found that I was right. I checked as recently as this morning in a lengthy telephone conversation with the president of ACPO, and nothing has changed between 25 February and today.

I will take your Lordships quickly through the stages to remove any doubt. In the summer of 2007, ACPO asked one of its number, Assistant Chief Constable John Donlon, the national co-ordinator for ports policing, to produce a report, and he did so in the summer of 2007. The report was entitled Border Policing—Options for Change. The options that were investigated ranged from the formation of a fully integrated, single border agency right through to no change at all. The stated objective was for,

“a single border agency bringing together all agencies operating at the border, including the police, into one truly integrated organisation”.

In November 2007, the Cabinet Office carried out its own border review and published the results. It recommended the UK Border Agency, which ruled out the inclusion of the police. ACPO was anxious to work with the grain of government, against its now stated policy, and was anxious to make the best of the concept of the UK Border Agency, as included in the Bill. In other words, it was going to make the best of an indifferent job. I hasten to add that “the best of an indifferent job” are my words, and not ACPO’s.

ACPO then asked John Donlon to produce a second report. He produced that report, entitled Border Policing—The Next Step, in July 2008. I draw your Lordships’ attention to the strapline to that report:

“A paper to inform discussion on modernising police structures in the light of Cabinet Office Border Review recommendations”.

It recommended the establishment of a single national police force to police ports and airports in this country, working alongside and with the newly envisaged UKBA. In other words, there would be a national police force covering the ports and there would be the new UK Border Agency. ACPO deserves praise for that. It was co-operating with the Government, as one would hope, and it was, significantly, willing to give up a good deal of its own operational responsibility, manpower, budgetary base, and so on, to create that force.

It was not a change of preference. Its stated preference is still to espouse the single agency that has been mentioned already by the two noble Lords who have spoken before me. We should declare the aim of having a single border agency that includes the police. That would, of course take time, step by step, stage by stage. It cannot happen overnight. To fail to declare a single, all-inclusive border agency as an aim is to go off at half cock and is, in many ways, waste of time and effort. It is a scrambled opportunity; it misses a golden opportunity. I certainly support what both previous speakers have said on this subject.

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My Lords, for the reasons given by the noble Lord, Lord Dear, I, too, strongly support the aim of the United Kingdom border police force being part of the UK Border Agency. I declare an interest as vice-chairman of the All-Party Group on Trafficking of Women and Children. One reason is that the proposals of both the Conservatives and the Liberal Democrats would include the UK border police force having the function of preventing and detecting human trafficking, which is to be seen nowhere else—as far as I know—in any policy requirement. I am in no way suggesting that the police around the country do not do their best, but they are doing it in different areas. It is extremely important to have a border police force with the specific duty and responsibility of preventing and detecting human trafficking. For that reason in particular, and for the reasons given by the noble Lord, Lord Dear, I support both amendments. Since it looks as though only one will be put to a Division, I will support it.

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My Lords, I should like to add my voice to the proposal from both of the Front Benches opposite for exactly the same reasons as those expressed by my noble and learned friend Lady Butler-Sloss. If the Government could assure us that they will right this particular aspect, one which particularly horrifies us—we know how many trafficked people, particularly women and children, are in the country but not accounted for—by stating it explicitly in the Bill, I might then have second thoughts. However, I have listened carefully to my noble friend Lord Dear and have considerable sympathy with his view. I look forward with hope and expectancy to the Minister’s response.

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My Lords, I suppose I should declare that I have some slight experience of crossing borders unnoticed in one way or the other, which is the nicest way I can put it. I hope that the Minister will listen to what has been said by the noble and learned Baroness and the noble Lord, Lord Dear. Our country needs the tightest regulation and rules, as well as a concerted effort being made by one force. I detect from the Government’s present view that they are being a little wishy-washy about a real border protection force. I therefore support the speakers who have gone before me and I hope that the Minister will be tough and positive about this.

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My Lords, I am grateful to the noble Baroness, Lady Hanham, and the noble Lord, Lord Avebury, for their explanation of why these amendments have been tabled. I am in no doubt whatever that everyone in this Chamber believes in strong borders for all the reasons we have given about their importance to the security of this nation. Moreover, I can assure the noble Viscount, Lord Slim, that we are not in the least bit wishy-washy; far from it. Indeed, we are being forceful in establishing the border arrangements, and the basis on which we are going forward is an indication of that.

We discussed the noble Baroness’s proposals at length in Committee, when I had to go through a whole raft of clause stand part Motions which I have to admit was rather over long. I set out then the reasons I felt that we are going in the right direction and that the proposals in the amendments were not the right approach. I have to reiterate those reasons. We are not at all clear about exactly what is meant when talking about a single police border force, and the sheer complexity of it would be great. The noble Baroness referred to the complicated arrangements set out in the Bill to form the border force we have proposed. When you are in government and trying to make something work both administratively and operationally, it is a highly complex exercise. Just to say in loose terms, “Let’s have a border police force and shove them in with it”, begs certain questions. What are the functions, who should be put into the force, who should the leadership of the organisation be—a police officer or a civil servant?—to whom would it be accountable, issues of devolution and huge issues of funding—would it require top-slicing and how would it be done? These are extremely complicated and difficult questions.

This was looked at in the Cabinet Office report, Security in a Global Hub, to try and deliver practical improvements to border security as a result of the attacks in 2007. Having looked at the complexities and difficulties, the Cabinet Office decided that having a single border police force was not the way ahead at the time. It did reach that decision because it would have been happy with something less good, but because there are real and practical ways of going about these things. Certainly, what we are doing is practical and will work. We have a responsibility and a duty to back up our policy proposals with well-thought-through provisions, which these are. I know that the noble Baroness seemed to think that they were a bit rushed, but they are not. For a Government, we are moving quickly, but we are not rushing.

Indeed, we already have the border force in place and working to some rather ad hoc rules, with work-arounds—that is not the way to do it—to achieve what we are saying we want to do. We need to get it on a proper basis; that is why the provisions in Part 1 of the Bill provide the necessary legal framework to build on the earlier successes of our border force and ensure that the officers and staff have the powers that they need to do their job effectively in the modern world. The measures in Part 1 complete the job of laying the foundations, where we have already started that work.

We have already taken important steps to enhance border security, but we need the provisions in Part 1 to complete that process. There is, therefore, a time issue, which is why it is important to move this quickly. I explained why we have not left this to later legislation; we want to get this in place and working for the security of the nation, so that we can have it fully in place and completely working by September. Without these provisions, we will not be able to transfer to the border force officers from HMRC who are currently engaged in customs controls.

I shall say a little more about policing. I have already mentioned that we had a long debate about this before today, and on the proposal to create a new border police force we have really heard nothing to persuade us that our approach is wrong. It is a highly complex thing to do. The judgment within the Cabinet meeting was that this is not the right way to go. The noble Lord, Lord Dear, talked about the ACPO position; all I would say there is that it seems to fluctuate a bit. As the noble Lord made clear, we have talked to ACPO at length. I have talked to a number of people within ACPO—a number of chief constables—and there are various views about this. The APA has a different view. There are a number of different views about this because it is so complex and hard to know exactly how to go ahead.

Our bottom-line judgement remains that we have not seen a compelling case as to the operational benefits to be derived for setting up a new national border police force, when we set them against the potentially significant costs, which are probably real, and a number of drawbacks involved. I do not believe that we have heard noble Lords articulating such a compelling case. It seems superficially attractive, and is easily said, but if you have to be there to implement it would not be quite so straightforward or so clear-cut that it will work as well as has been said.

In Committee, I set out to your Lordships our approach to enhancing significantly the already close working relationship between the police and the border force. The noble Baroness may not have said that it was at arm’s length, but she gave the feeling that it was not close, but it is a very close relationship and works well. We are trying to make it even better. Indeed, ACPO is helping us on this and I am grateful for its work there. We have a very firm platform to build on. I think of the creation, within the past few years, of the police counterterrorism network, and of dedicated regional assets closely linked to local Special Branches, which gives quite a lot of flexibility—particularly to the local chief constables. We will take steps to enhance border policing within that network and to improve standards, consistency and co-ordination. So, I believe that it is good and getting better.

Yesterday, the government strategy known as CONTEST came out. It is the first time that we have set out, in a public document, a detailed account of the history of the threat from international terrorism, the impact that has had on the UK, our understanding of its causes and our view of its likely direction. The current threat of international terrorism remains “severe”, meaning that an attack is highly likely. A key part of the strategy is ensuring the security of our borders. I am delighted, as I have said, that all noble Lords who have spoken absolutely see that, understand it and support it.

The CONTEST strategy sets out steps that we are taking to improve our protection. The Memorandum of Understanding between the border agency and the Association of Chief Police Officers is an important part of that. We will continue with our e-Borders work and biometric visa programme; we will improve our capacity to detect, deter and intercept radiological material, as I mentioned yesterday. That will all be done by the new border force.

The noble Lord, Lord Avebury, asked what happened at the conference referred to in Committee on 25 February. I was not there myself, but I understand that it was a very useful meeting between senior police, the border force and Home Office officials. They discussed quite a lot of the detail on some of the proposals to improve standards and national co-ordination. There is no doubt that we are improving intelligence sharing. They are going to meet again in April to go the next step further. In a sense, these things are still living; I would never say that never in future would we ever say we are not going to have a border police force. Perhaps conditions will change and we will see things differently but, at the moment, it is not the appropriate thing to do. It is much more important that we achieve what we are achieving here, which is something that is achievable and practical and will absolutely enhance the security of our borders and, therefore, our nation.

The noble Lord, Lord Avebury, asked about the Policing and Crime Bill. There are provisions to assist with collaboration between police forces in that Bill, which is presently in the other place. It also refers to airport security.

The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howe, referred to trafficking. I cannot put something in this Bill on that issue, but I absolutely understand the full horror of trafficking and how important it is. Later in the Bill, when it comes to children, this subject will again be mentioned. What I certainly will do is consider whether there is some measure that could be reflected within the new border force, because this is a very high priority for everyone. I shall see what can be done in that sense.

We will not or do not intend to create a new national border police force. Our energies and those of the police and the border force are much better put to delivering increased protection through the steps that we have outlined, rather than stretching out towards a rather vaguely articulated position, with all sorts of implications that we do not understand, which may or may not be workable in practice. I ask the noble Lord to withdraw the amendment.

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My Lords, we are very grateful to the Minister for not ruling out the ultimate creation of a unified border force on the lines proposed by both the Conservatives and Liberal Democrats in their strategy documents. We have accepted the arguments that the Minister advanced, both in Committee and this afternoon, for not proceeding with the proposal at this stage.

We listened with great care to what the noble Lord, Lord Dear, said. It was interesting that ACPO revised its position following the publication of the Cabinet Office report in July 2007 and came round to the view that it should, for the time being, rule out the creation of a unified force. The Minister rather unfairly said that its position seemed to fluctuate when what it had done was to try to accommodate itself to official government policy. It would be interesting to know whether ACPO has any response to the objections that have been ventilated thoroughly, for an hour and a half in Committee and now for 35 minutes on Report, on why this is not the appropriate time to proceed with a unified border force.

We welcome what the Minister said about the progress made at the conference on 25 February. Will he kindly place any outcome of that conference in the Library so we can all have a look at it? If we can see that the arrangements that are being made between the police and the border force are such as to promote this ever-closer co-operation, which everybody wants to see, to deal with the menace of trafficking and drug importation and to counter the threat of illegal immigration, we will all have achieved the result that we wanted, even if we have not reached the ultimate goal of a unified force at this stage. For the time being, I beg leave to withdraw the amendment.

Amendment 2 (to Amendment 1) withdrawn.

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My Lords, I thank everybody who has taken part in the debate. It has provided an extra dimension to what is in the Bill, or perhaps a different view of what should be there. I am enormously grateful for the support of the noble Lord, Lord Dear, whose great expertise on this subject I value highly. His contributions, both today and in Committee, have been extremely effective.

I am grateful also for the tacit support of the Liberal Democrats. We are running along the same tram lines, although they may diverge slightly. I am not so happy with the contribution of the noble Lord, Lord Roberts, which underplayed the importance of what we are proposing. As I have made clear, we are absolutely committed to ensuring that our borders are secure—there is no difference on that between any of us in the Chamber. What we are trying to demonstrate is that there is a missing ingredient in the Bill.

We have had two good debates on this matter. It is clear that the Government are not going to move at this stage. I am still of the view that there is a missing link in the proposals being put forward by the Government. The Minister said that there was a great deal of complexity in what has been done. It would be a pity if all of it had to be redone in order to put into the Bill, in a full and committed way, the police element.

I thank the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Howe, and the noble Viscount, Lord Slim, for contributing. This is a debate that will be returned to in time: it will not go away, because it is of such fundamental importance to how we ensure that we in this country are secure, and that the movement of people and the trafficking of goods across our borders are properly managed and well understood. I do not suggest that they are not; I suggest that we can enhance them.

I have no intention of testing the opinion of the House today. I thank everybody for taking part in the debate and the Minister for contributing twice at considerable length and for sending us a detailed response. Can he say where that response will go? We have had a pile of paper well in excess of what has gone into the Bill in response to all the points made in Committee. It would be a pity if it was all lost, because I am sure that others would value what has been said. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 1: General customs functions of the Secretary of State

Amendment 3

Moved by

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3: Clause 1, page 1, line 9, after “Commissioners” insert “, or officers of Revenue and Customs,”

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My Lords, Amendments 3, 4, 5, 6, 14, 15 and 63 are related and I will take them together. I shall speak to government Amendments 3, 4 and 5, which are clarifying amendments.

We had much debate in Committee about the nature of general customs functions under the Bill. General customs functions include not only the functions exercisable in relation to a general customs matter by the commissioners, but also any functions currently exercisable in relation to those matters by officers of HMRC. Under the Bill, these functions will all come to the UK Border Agency.

Clause 1 defines general customs matters as those in relation to which the commissioners of HMRC have functions other than those that concern revenue and other excepted matters set out in Clause 1(2). However, some non-revenue customs functions are conferred on customs officers directly, rather than via the commissioners. Examples include the ability of officers to detain unsafe goods on import under the Consumer Protection Act 1987, in order to allow for their inspection by a trading standards officer, and the ability of officers to detain ships under the Public Health (Ships) Regulations 1979 on behalf of port health authorities.

Of course, it could be argued that, by conferring functions on an officer of HMRC, a statute also confers functions on the commissioners, who, by virtue of the provisions in the Commissioners for Revenue and Customs Act 2005, are responsible for directing and supervising the actions of their officers. On balance, though, we think it better to put it beyond doubt that general customs functions include those functions exercisable in relation to general customs matters by the commissioners and by the officers of HMRC, particularly as the term “general customs matter” is also used in Clause 3 to delineate what a designated general customs official may do under the Bill. These amendments simply make it clear that, irrespective of whether a statute confers functions on the commissioners or on their officers, or both, those functions will be fully exercisable by the UK border force in future.

The purpose of government Amendment 14 is to clarify that the functions of the commissioners of HM Revenue and Customs, which may be exercised concurrently by the Director of Border Revenue under Clause 7(1), do not include those functions that were formerly vested in the commissioners of Inland Revenue.

It is clear from the overall context of the Bill, particularly given that Clause 7 defines customs revenue matters as those relating to taxes for which the former department of HM Customs and Excise was responsible, that we are conferring only customs-related functions on the UK Border Agency in this Bill. However, we need to make it clear that it is only Section 5(2)(b) of the Commissioners for Revenue and Customs Act 2005, which deals with the functions formerly exercised by the commissioners for HM Customs and Excise, that applies to the Director of Border Revenue. The remainder of Section 5(2) relates to the former functions of the Inland Revenue. I hope that noble Lords will agree that these amendments, although they sound complicated, assist in clarifying the functions that may be exercised by the Secretary of State and by the Director of Border Revenue.

If the noble Baroness, Lady Hanham, will indulge me, I shall speak to her Amendments 6, 15 and 63 ahead of her. If I understand correctly, the noble Baroness and the noble Viscount, Lord Bridgeman, have tabled a series of amendments that have at their heart the quite legitimate aim of attempting to further clarify exactly which functions will be exercised by the Secretary of State and the Director of Border Revenue respectively. I hope that that is the aim; if I am wrong, I am sure that the noble Baroness will make that clear to me. Unfortunately, the amendments as drafted will not achieve this aim. As I must therefore resist them, I will explain why.

We can all agree that the drafting of Part 1 is complex. Amendments 6 and 15 both make reference to the schedule that Amendment 63 proposes, so Amendment 63 provides the real substance of these amendments. As your Lordships can see, Amendment 63 contains two lists: one of customs revenue functions and one of general customs functions. The list of general customs functions included in Amendment 63 attempts to expand on the general functions of the Secretary of State set out in Clause 1. However, the list—I acknowledge that it was supplied to the House by the Government—is far from comprehensive. It was precisely because of the difficulty of drafting a comprehensive list that we have taken the approach that we have in the Bill. The list of customs revenue functions, meanwhile, simply repeats what is already set out in Clause 7(2) of the Bill and is therefore unnecessary.

Clause 1 defines the functions to be exercised by the Secretary of State by reference to those functions of the commissioners that she may not exercise. I can understand why noble Lords have raised concerns about this, but a careful look at Clause 1 will show that these concerns are misplaced. Let me explain the Government’s approach. Taking the functions of HMRC as a whole, we have first excluded all the former Inland Revenue’s functions from the definition of general customs functions. We have then excluded any other revenue, duty or tax matter. We have then excluded the functions of the Paymaster-General given to HMRC and the regulatory role of HMRC in controlling money-transfer businesses. Thus the Secretary of State is left with the non-revenue customs, shipping and enforcement functions of HM Revenue and Customs. These are the functions that the commissioners and customs officers exercise in relation to ports and airports, the movement of goods, preventing drug smuggling and the smuggling of other prohibited and restricted goods, and the regulation of trade and shipping.

We have not set out each and every relevant function in the Bill because the statutes conferring powers and functions on customs officers are many and varied. It would be a very long list and not one that could sensibly be set out in legislation. I shall give some examples. As noble Lords will no doubt be aware, our customs administration is one of the oldest in the world and, as such, many customs functions date back hundreds of years. The Slave Trade Act 1873 gives customs the power to seize a vessel used for the purpose of the slave trade. The Naval Prize Act 1864 provides for customs to take custody of any ship taken as a prize. The Import, Export and Customs Powers (Defence) Act 1939 gives customs a role in preventing trading with the enemy. The Docking and Nicking of Horses Act 1949—that is clipping their ears, not stealing them, I hasten to add—gives customs a role in preventing the import of horses whose tails have been docked.

In more modern times, the Merchant Shipping Act 1995 gives customs a role in ensuring ship safety, requiring production of ships’ documents and detaining ships if necessary. As a naval officer, I mention in particular a very important power relating to shipping. If a ship is flying improper colours, a customs officer may board the ship and seize and take away the colours. I could go on. The Chemical Weapons Act 1996, the Rabies Act 1974, the Explosives Act 1875 and the Salmon and Freshwater Fisheries Act 1975 all give a role to customs in enforcing their provisions. However, I do not believe that there is any need to list them all in the Bill, because all that is left for the Secretary of State, after we have excluded all the revenue and other “inland” work of HMRC, is the appropriate non-revenue customs work. In future, the exercise of all these various functions at ports and airports will be for the border force and not HM Revenue and Customs. I beg to move.

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My Lords, I thank the Minister for that explanation. I should like to take a straw poll across the House to determine which noble Lords have understood what the general customs functions and the general revenue functions will be. As he clearly indicated, they are still as opaque as they were originally. I am extremely grateful to him for trying to help us out on the allocation of these functions and their definition, both in the explanation that he gave this afternoon and in the long letter that he sent prior to our laying the amendments.

However, as I say, I do not think that anything has taken us much further in obtaining transparency about what these duties are. Without referring to several other pieces of legislation, it is still difficult to know what is involved and what the exact functions covered under the general customs functions are and what is covered under those given to the Director of Border Revenue. As we understand it—the Minister has tried to explain this today—the intention is that, as regards the customs matters, only those functions of HMRC that relate to the importation and exportation of goods will be passed to the UK Border Agency and only functions relating to customs and excise duties, agricultural levies and VAT as regards the importation or exportation of goods will pass to the Director of Border Revenue.

The Minister rather decried the extremely helpful list that he sent, which seemed to me to delineate carefully what those functions will be and what powers are to be passed across. However, unfortunately, the Minister dismissed it as not being very helpful. I am sorry about that because I think that the list—

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My Lords, I was trying not to dismiss it but I thought that the noble Baroness’s amendment was seeking a fully comprehensive list. The list that we have is useful but, as I explained, a fully comprehensive list would constitute a 78-page document and be a bit confusing.

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My Lords, I thank the noble Lord for those comments but I still think that the list that was given to us would be illuminating for anybody who is trying to find their way through this legislation, which we have said all along is opaque and difficult to fathom.

I am not sure that the slave trade is terribly relevant to the functions that have been passed down at this stage, which are the ones that we are talking about—the legislation relating to what has been passed from HMRC and from the commissioners to the Secretary of State and the Director of Border Revenue. I can only say that I hear what the Minister has said. I am sorry that we cannot get any further with this. That list ought to be somewhere on file, because it would be enormously helpful in the future.

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My Lords, we listened carefully to what the Minister said and we understand that what is now proposed is really quite belt and braces; I think that he used the phrase “put it beyond doubt”. The UKBA official or Home Office official who is designated under Clause 3(1) becomes a “general customs official”, and under Clause 3(2) he has the same functions in relation to a “general customs matter” as the Secretary of State has under Clause 1(1) or as an HMRC official has as a servant of the commissioners.

I want to mention one of the noble Lord’s letters—I cannot remember precisely which one—and I say, by way of interpolation, that I entirely agree with what the noble Baroness, Lady Hanham, said in her concluding remarks. It is really an awful waste for these letters not to see the light of day and I wish that there could be some way in which they could be placed on the web. I made a suggestion when we discussed this shortly before we came into the Chamber, if I may reveal our conversation. On the parliamentary website, you go down to the section under “Bills and Legislation” and you can see the various stages of a Bill and all the amendments. If space could be found on that page to put up the letters from Ministers—

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My Lords, all the letters that have been sent are available in the Library. The noble Lord and the noble Baroness are absolutely right that it would be a great shame to lose those, because they will help in the general understanding of why we have arrived at the legislation that we have arrived at.

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My Lords, we recognise that but, as the noble Baroness, Lady Hanham, pointed out, they are not accessible to the general public. When we look for advice from experts outside, as we normally do, we have to remember to send them copies of these letters so that they can see them. There may be a lot of other practitioners who do not get to see the letters but who would enormously value the advice that they give. The suggestion on the table is that perhaps the Minister could consider how they could be placed on the web so that they would be accessible to a much wider audience than simply this House.

The Minister’s letter referred to Schedule 7 to the Terrorism Act, which allows an examining officer to question a person at a port or in the border area, to search the person or his possessions and to take his fingerprints or a DNA sample. This power may be exercised already under the Terrorism Act 2000 by a constable, an immigration officer and a customs officer who is designated for the purpose of Schedule 7 by the Secretary of State and the commissioners. So all immigration officers may conduct an examination under Schedule 7, whether or not they are designated under Clause 3(1), and the Minister could perhaps explain why he singled out this enactment in the letter.

Perhaps it was because of the discussion that we had on 4 March, when the Minister said that a public consultation was being undertaken on how to bring the S and Marper judgment into effect and that he would put copies of the consultation documents, as well as the interim response to the European Council of Ministers, on the Home Office website. I looked on the Home Office website on Saturday evening and I could not see the material, still less anything about the sensible timescales that the Minister said would be attached to the process. I would be grateful if he would look at that matter.

The point of raising the matter at this stage is that, as the Minister’s letter underlined, the taking of biometric samples under Schedule 7 to the Terrorism Act is not exclusive to the Special Branch, as in the example that I gave in Committee, but can be done by any immigration or designated customs officer. The fingerprints and DNA samples taken by all those officials are being stored indefinitely, contrary to the judgment mentioned. It is surely very unusual, if not totally unprecedented, to launch a public consultation on how to comply with the law, rectifying the violation of Article 8 of the European Convention on Human Rights. The samples have to be destroyed once it becomes clear that the person is not subsequently charged with any criminal offence; that is the principle to which we would invite the Minister to agree now. We are not objecting to Schedule 7 itself, but this may be the only opportunity that we get to point out, as the Minister has done so helpfully in his letter, that thousands of officials have the power to make ordinary passengers give them biometric samples, which are still being retained for ever, three and a half months after that was declared unlawful by the highest court in Europe.

On government Amendment 14, Clause 7 deals with the customs revenue functions of the commissioners, which are exercisable concurrently by the Director of Border Revenue in relation to a customs revenue matter, as defined in subsections (2) and (3). I interrupt myself to say that we had a very encouraging response from the Minister when we suggested that there should be a schedule of definitions attached to the Bill, as in the draft Bill that was published in July 2008. It would be useful to know whether the Minister has given further thought to that since we discussed it offline, as it were. The functions in question are those conferred on the commissioners by,

“an enactment passed … before the end of the session”.

The Commissioners for Revenue and Customs Act 2005 deals with those functions of the commissioners that had formerly been vested in the commissioners of Inland Revenue. If those functions did not relate to any customs revenue matter, they would not have been covered by this clause, and I am wondering why it is necessary to spell out the provisions of the 2005 Act that are included in Clause 7(7), when they must be sufficiently defined already. Is the 2005 Act the only legislation that deals with HMRC commissioners’ powers over both customs revenue matters and other functions, where it might be necessary to make the distinctions between the two?

The Conservative amendments would insert new definitions of “customs revenue” function and “general customs” function into a schedule, but something has gone wrong with the quotation marks in the amendment. The terms defined should be plural, but no doubt this is how they were in the document circulated by the Minister—they were copied verbatim from a document that perhaps was not drafted very thoroughly. In the Bill, each of the terms is defined as a function exercisable in relation to the corresponding matter, conferred by specified enactments enumerated in the corresponding clause. The matters are then defined separately. The Conservative amendments condense these matters into two lists that are much shorter than the two lists in the Bill—as in the Minister’s letter but, no doubt, at the expense of some precision, as the Minister has said. For example, the customs revenue function list includes all excise duties, while some are purposely excluded in Clause 7(2)(e), such as lottery duty or pool betting duty, presumably because they have nothing to do with our borders.

On reading the explanation in the Minister’s letter, I thought that it might be useful to have a Venn diagram showing the overlapping functions and responsibilities. We look forward to seeing the promised partnership agreement between UKBA and HMRC, but we would also welcome a visual presentation that might help to convince us that the complicated structure of Part 1 is unavoidable.

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My Lords, may I take away the issue of the letters and how we may make them available to the public? I will look at it to see what would be feasible to have on a website, but I shall need advice on what we are able to do.

The noble Baroness, Lady Hanham, and the noble Lord, Lord Avebury, referred to the list. I tried to explain how complex the list would be if it covered everything. The problem is that a list would be illustrative only and having an illustrative list is not the right thing to do in legislation. It would not be a good way forward.

On fingerprints, DNA and whatever, the Government are completely committed to a public consultation on how they respond to the judgment in S v Marper and will inform the House when it is launched. If I get a heads up about when it is coming up, I will let noble Lords who have taken part in this debate know, but I am not aware of the date yet.

Schedule 7 was teased out in my letter because of the discussion we had. That is why I particularly put it in.

The necessity to specify parts of the CRCA 2005 is because we have excluded application of that Act generally, but we need to apply certain provisions of it specifically, such as the example given by the noble Lord relating to the commissioner’s functions. That is why we have done that. It looks strange, but that is the reason behind it. I think the noble Lord said that I said that we would put something on the website about this. May I look in Hansard, see exactly what was said and come back when I have taken advice about what I can do?

I appreciate the motivation behind all these amendments. I hope I have explained why I do not feel that they are appropriate. I ask the noble Baroness not to press her amendments and ask the House to accept the Government’s amendments.

Amendment 3 agreed.

Amendments 4 and 5

Moved by

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4: Clause 1, page 2, line 19, after “section” insert “—(a)”

5: Clause 1, page 2, line 20, after “applies” insert “;

(b) to functions of officers of Revenue and Customs are to functions conferred by an enactment to which section 3 (designation of general customs officials) applies.”

Amendments 4 and 5 agreed.

Amendment 6 not moved.

Clause 3: Designation of general customs officials

Amendment 7

Moved by

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7: Clause 3, page 3, line 17, leave out paragraphs (a) and (b) and insert—

“(a) any officer transferred to the UK Border Agency from HM Revenue and Customs,(b) any UK Border Agency employee recruited for that specific purpose,”

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My Lords, in speaking to Amendment 7, I shall speak also to Amendments 8, 9 to 12 and 16 to 18. In particular, I shall speak to the elements relating to the possible dilution of skills of the workforce. My noble friend Lady Turner of Camden will cover the elements relating to the powers of the Secretary of State to designate officials.

These amendments were requested by the Public and Commercial Services Union because it has fears about the dilution of the skills in the workforce under the Government’s proposals, which it believes could lead to less effective border controls, and the Secretary of State’s power to designate officials. The PCS considers,

“that separate bodies, with separate specialisms”—

as we have at present—

“exercising separate powers, but in a complimentary way makes for the most professional border controls”.

It fears,

“that spreading powers will lead to diluted skills”.

It believes that:

“Effective co-ordination between public authorities at the border is recognised as vital in the fight against trafficking. For such co-ordination to be most productive, it has to draw together specific expertise in a complementary way”.

The union states that it,

“strongly believes that government policy on the creation of a unified border force militates against effective border security for two main reasons: at present, with three sequential control points there are three opportunities for detection and intelligence purposes, with passenger and vehicular traffic potentially subject to three checks by immigration, police and customs officers at points of entry. Currently these checks are separate and sequential, allowing each organisation the chance to display their skills and experience to tackle trafficking. Our experience has shown that each intervention has yielded intelligence and concrete results in dealing with human trafficking. The proposed reduction to a single primary line may reduce the barriers at the border to one and accordingly reduce the deterrent and interceptive effect of three separate controls”.

The union believes that complementary skills of three trained and experienced groups of specialists—immigration officers, customs officers and police—are not likely to be matched by one officer attempting to fulfil a variety of roles. The PCS’s view is that,

“effective co-ordination of separate organisations presents a much tougher barrier to human and goods trafficking than the reduced presence and deskilling as a result of a single border force”.

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My Lords, I support my noble friend’s amendments. As she rightly says, we have been approached by the Public and Commercial Services Union, which is concerned about certain aspects of the Bill. As my noble friend said, I want to talk about the power of the Secretary of State to designate officials as set out in the Bill. The union states:

“These clauses widen the definition of who is able to carry out immigration and customs functions. If ‘officials of the Secretary of State’ can include people from outside the civil service then contractors could be used to carry out all the functions described in the Bill. In previous legislation powers have been specifically designated to immigration officers, customs officers or the police”.

The wording in the Bill, therefore, according to the union,

“provides the government with the means to privatise all functions to which the designated powers apply”.

I and the union have grave concerns about the clause. The union states:

“PCS believe that if low paid contract workers, without the benefits of civil service pay and terms and conditions carry out this work then they will be more open to criminal inducements. This argument was accepted by previous Ministers when used by PCS in defence of members’ jobs in freight searching, which were under threat of privatisation by the previous Immigration and Nationality Act”.

Furthermore, the wording in the clauses states,

“may be permanent or for a specified period”.

In other words, you could well have temporary contract workers performing immigration functions. That would not be in the public interest either. Rightly, it would not be in anyone's interest to have those important jobs done by people who are quite inadequately trained, which could very well be the situation if we had temporary contract workers doing those jobs.

Why are the proposals in the Bill? Why is there an attempt to widen the definition? I hope that we will not be told that the job will be done more efficiently through contracting-out or privatisation. I would not find it at all acceptable if it were intended to do it more cheaply. We must not accept such an argument in regard to this very important function. I am sure that that is not the idea behind the wording, but it could well be believed to be by the union, and that is a bad situation.

I support my noble friend’s amendment and await with interest the Government's response.

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My Lords, it is by joining up our powers, assets, skills and people in one organisation that we can increase our flexibility, strengthen border security and improve our capacity to facilitate legitimate trade and the movement of people. While I appreciate the sentiments behind the amendments proposed by my noble friends Lady Gibson and Lady Turner I want to explain why I believe they are not appropriate.

The amendments would prevent the Secretary of State and the Director of Border Revenue designating immigration officers and other existing officials of the UK Border Agency as customs officials. They would also reduce the agency’s operational flexibility by removing the ability to make and to vary designations according to business needs. I should point out straightaway that Clauses 3 and 4 do not permit the Secretary of State to designate contractors as general customs officials; contractors are not officials of the Secretary of State for the purposes of these provisions. I assure my noble friends that that is not the intention and it will not happen.

By not allowing other designations, however, this would prevent the full integration of customs and immigration functions within the new border force and it would jeopardise delivery of a unified customs primary checkpoint, as recommended by the Cabinet Secretary’s report, Security in a Global Hub. My noble friend talked about not having the same number of barriers. We now have a first line of the border force which is abroad, where the visa agency used to be. We will monitor all of that, and in future there will be e-Borders as well. The second line is the full development of e-Borders, targeting based on PNR and intelligence and the line of people at the port itself.

Combining immigration and customs powers in the hands of our officials will enable us to improve the breadth and depth of protection at our borders. It will mean greater operational flexibility for the agency to deploy its staff better. Over time staff can be redeployed quickly to manage effectively any change in the nature or scale of the threats that we face. That is often very intelligence-based. The agency can cover more locations and respond to a greater number of threats. The approach will bring benefits for our staff too. As a consequence of our proposals, some roles will broaden as we develop an integrated approach to the front line, providing opportunities to learn new skills, take on new responsibilities and have wider career paths.

We will be careful to ensure that we do not lose the strong capabilities that exist in HM Revenue and Customs and the former Border and Immigration Agency and UKvisas. Accordingly, in some areas, specialisms will be retained. The UK Border Agency was created because it represents the best model to secure the border. We will aim to retain good practice where it already exists. Rather than dilute the skills, Part 1 will enhance the capabilities of our border force officers.

The new legislation will make sure officers have all the powers, tools, equipment and training that they need to carry out passport and customs controls at the borders. That training will provide them with the instruction and skills appropriate and necessary to allow them to exercise the full range of their functions. I hope that my noble friends will be reassured to know that we have kept trade unions across all affected departments updated as we have taken our proposals forward. The national body, the Council of Civil Service Unions, was consulted by the Cabinet Office review team during the preparation of its report, Security in a Global Hub.

We continue to build on this involvement as a key part of the implementation process and regular meetings are held with the recognised trade unions. Any proposed changes that might impact on jobs or terms and conditions will be subject to full consultation with those unions. We need every man and woman that we have to ensure the safety of our borders. This is certainly not some hidden way of trying to reduce numbers.

In summary, the Bill is intended to increase the flexibility to deploy UKBA officers and officials where they are most needed and to build on existing skills and manpower. We do not envisage reducing the number of personnel at the border in any way. Rather, we intend to deploy people on the basis of intelligence in the most appropriate way, given their skills to meet the threats that we face. The amendments would prevent the flexible deployment of the agency’s staff and would impact on its ability to deliver the broader and deeper coverage of our borders that the Bill is intended to achieve. While I understand exactly where the amendments come from, I hope that I have been able to reassure my noble friends that the unions need have no fear in this area and we will not be employing temporary staff as they are not covered by this. I hope that my noble friend will feel able to withdraw the amendment.

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My Lords, I thank my noble friend for that full reply and for his reassurances about contractors and border controls. I was heartened to hear that the workforce will be borne in mind for new skills and responsibilities and that there will be consultation with the unions as things progress. I therefore beg leave to withdraw my amendment.

Amendment 7 withdrawn.

Amendment 8 not moved.

Clause 4: Designation: supplementary

Amendments 9 to 12 not moved.

Clause 6: The Director of Border Revenue

Amendment 13

Moved by

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13: Clause 6, page 5, line 6, leave out subsection (2) and insert—

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

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My Lords, in Committee we discussed what the Director of Border Revenue would do and who that person would be. It became apparent that, for the moment at least, the chief executive of the UK Border Agency is the person on whom the Secretary of State’s hand has fallen to become the Director of Border Revenue, so we have two senior roles in one. As things stand, none of this needs to be approved by anybody other than the Secretary of State.

I made it clear then as now that I have no objection to the person who has been appointed as Director of Border Revenue—she is a distinguished chief executive of the UK Border Agency—but I have concerns with the principle of what is happening. If the Secretary of State is, on each occasion, going to put her hand on the chief executive of the UK Border Agency and make that person the Director of Border Revenue, we ought to make that clear. It ought to be assumed to be part and parcel of the UK Border Agency chief executive’s role and Parliament needs to know about that.

If that is not going to be the situation and, as time passes, new people are appointed and the Secretary of State no longer thinks that the chief executive of the UK Border Agency should be the Director of Border Revenue, then those two positions part and you have two senior people in two different roles. If that is the situation, one of two things must happen. Either there has to be a full and transparent appointments process under the Nolan principles, whereby people put their names forward as an applicant for this post, whether they are in the department or not, or Parliament has to approve in some way the person who is going to be appointed. There are several ways of doing this. It can be done by a Select Committee, by the Treasury Select Committee, by a report to Parliament or even by appointment by Members of Parliament. This postholder has a significant job to do controlling the revenue brought into this country or claimed at the ports and carries a big customs role as well. We need to make it clear that this post cannot for ever more be designated by the Secretary of State. That is the reason for this amendment. I beg to move.

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My Lords, we do not think that it would be appropriate for the Director of Border Revenue to be approved by both Houses of Parliament but we understand that, as the noble Baroness said, this is really a vehicle allowing us to discuss what will happen in the future when Lin Homer has disappeared from the scene. We know, because the Government said so when we dealt with the appointment in Committee, that Lin Homer is going to be appointed, doubling as head of the UKBA and ensuring that the two functions are joined from the top down. The Bill does not actually provide that the chief executive of the UKBA will always be the same person as the Director of Border Revenue. However, as the Minister told us in Committee that the intention was that they would always be one and the same person, I merely wonder why that is not in the Bill.

At some time in the future when the post becomes vacant—the noble Baroness, Lady Hanham, has hypothesised about this—the Minister said that it would be possible to fill it through an open competition under Civil Service rules on the basis that the chief executive would also be the Director of Border Revenue. His wording indicated that other scenarios might be being contemplated, which may account for the absence of any reference to the accommodation of the post in the Bill. Assuming that it is envisaged that, in some remote circumstance and at some future date, two different individuals could occupy the posts, how would the department’s wider strategic objectives for a unified operation and management command of the UK’s border forces be achieved? We remain uncertain of the future, because this is not in the Bill, and we would like to learn more from the Minister now.

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My Lords, it is anticipated that the Director of Border Revenue and the chief executive of the border force will be the same person. I am not sure why that cannot be in the Bill. I will take that away, because I see no reason why it should not be. That is absolutely the intention, because it provides a single management chain of command—the noble Lord alluded to this, as did the noble Baroness, Lady Hanham—within the border force over customs revenue functions, customs non-revenue functions and immigration functions. I am about to be told why we cannot put this into the Bill—I have been handed some great long sheet—but I do not see why we cannot. I will have another look at this.

The Director of Border Revenue, who has a statutory responsibility for customs revenue functions, will act independently of Ministers. The noble Lord, Lord Avebury, is absolutely right about that. That is how it should be. However, like Her Majesty’s Revenue and Customs, the Director of Border Revenue will be subject to general directions from the Treasury. It is absolutely appropriate that, in selecting this person, the Home Secretary should fit within the structure of deciding who will come into this job, but she will do so in conjunction with the Treasury, so there will be Treasury agreement at the same time.

The amendment would give Parliament the right of veto over the designation of the director. To require the Bill to state that the designation process is subject to parliamentary approval would be a very unusual and inappropriate step. Under the Bill as it is currently drafted, the Secretary of State is required, before designating a person as director, to obtain the consent of the Treasury, as I said. This reflects the Treasury’s important interest in running the agency. Ultimately, the Secretary of State is also accountable to Parliament both for her choice of director, if she gets it wrong and the director does things wrong, and for the wider running of the border force.

It is interesting that, following the publication of the Governance of Britain White Paper, the Government have agreed that some key public appointments—mainly of ombudsmen, complaint investigators and those with inspection roles—should be subject to pre-appointment Select Committee hearings. The arrangements for these appointments are set out in much more detail in the Governance of Britain White Paper. The aim is to provide further reassurance that government appointments to roles such as those are made on merit and are properly independent of the Executive.

The Government agreed this approach and the list of posts that are suitable for pre-appointment scrutiny with the Liaison Committee. Civil Service posts such as that of the Director of Border Revenue are not suitable for this form of pre-appointment scrutiny, as they are not intended to be independent of the Executive. Indeed, they should not be independent of the Executive. If the post of chief executive of the UK Border Agency were to become vacant, we would fill the post by open competition under Civil Service open-competition rules on the basis that the post holder would also be the Director of Border Revenue, and the Home Secretary would have the final say about whether that person would work for her. The person may, for example, not get on with her.

On this basis, I hope the noble Lord and the noble Baroness agree that the amendment is unnecessary. I have not read the two pages of close written stuff, saying why we cannot possibly put it in the Bill. May I go away and have a look at that and talk with the staff? If at all possible, I would like to put it in the Bill but if there is some real reason why I cannot then maybe I could come back to her on that point.

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My Lords, I am most grateful to the Minister for his reply and his robustness to the message from the Box; that is always enormously helpful when a Minister is likely to take a different view.

This needs transparency. Even the Minister was talking almost as if these were two roles and two different people. It is clear—and I think the Minister accepts this point—that, if you are going to refer to the position as “the UK Border Agency chief executive (Director of Border Revenue)”, the Secretary of State cannot designate an official in the department to be that person. That does not stand up. It does not make sense. The Secretary of State is not going to designate the UK Border Agency chief executive because that is clearly a matter that is open to at least competition or some form of selection; the Director of Border Revenue is subject to that as well. It is not subject to a designation. The pretence that this is going to be a different person needs to be resolved.

By Third Reading, I hope the Minister may have found a way of resolving this unfinished business. We need to make clear who we are talking about rather than try to pretend that this is a separate person with a separate level of responsibilities. I appreciate that the Director of Border Revenue has responsibilities. They are clear and probably different to, but included in, the position of the chief executive of the UK Border Agency. This is misleading and misleading legislation is bad legislation. Therefore, I hope the Minister will find a way of correcting that by the Bill’s next stage. For today, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Clause 7 : Customs revenue functions of the Director

Amendment 14

Moved by

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14: Clause 7, page 6, line 10, leave out “(2)” and insert “(2)(b)”

Amendment 14 agreed.

Amendment 15 not moved.

Clause 11 : Designation of customs revenue officials

Amendment 16 not moved.

Clause 12 : Designation: supplementary

Amendments 17 to 18 not moved.

Amendment 19

Moved by

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19: Clause 12, page 8, line 43, at end insert—

“( ) “Adequate training” means training that provides a designated customs official with all the instruction and skills appropriate and necessary to exercise the customs revenue functions conferred on him fully and properly.”

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My Lords, we return to the matter of training; in Committee we talked about what adequate training would be and we are still concerned that there is no definition of it in the Bill. When the noble Baroness, Lady Gibson, moved her amendment, she talked of some of the fears of the unions about deskilling. This goes to the heart of what we are trying to do with getting a better definition of adequate training in the Bill. The wording that we have chosen to use for this definition is the wording that the Minister himself used to define it in Committee when he said:

“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.”.—[Official Report, 25/2/09; col. 249.]

That was a very helpful comment but we feel it would be more helpful to define it in the Bill.

The Minister, earlier this afternoon, explained some of the customs’ functions: that of taking away the colours from ships, that of nicking horses in the proper sense, the functions to do with fish and, on the revenue side, the checking of taxes and so on. These are all vastly different. So staff from both functions will do very different work.

We were not fully satisfied with the depth of explanation given in Committee. Mention was made of 14 weeks’ training. I have reread what was said, but I am still not fully clear on whether that refers to 14 weeks on-the-job training. Clearly, it would not be 14 weeks of nothing but training. It is not clear how much of each day will be spent on training or even what the criteria for successfully passing the training will be. It was said that training will be delivered by trainers accredited by HMRC and that they,

“will be mentored by the personal training officer network”.—[Official Report, 25/2/09; col. 249.]

I am surprised at that. I am not sure whether that should be the “personnel” training officer network. I assume that it should be “personnel”, the old-fashioned word for HR. Alternatively, does it mean personal trainers of the type used by celebrities? The interpretation can be slightly ambiguous, which may be due to the spelling on the record. Perhaps the Minister will explain that more fully.

For the reasons explained by the Minister when he spoke to the first amendments to the Bill, this is supposed to strengthen the border force and improve it. This afternoon, we have heard some of the fears. In fact, the adequacy of training is exactly what will make this entire exercise a success or not, of which I am sure that the Minister is fully seized. That is why it is worth going back to this issue at this stage. I beg to move.

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My Lords, I very much support this amendment. We had considerable discussion about this in Committee, but I do not think that we entirely clarified what would happen. As I understand it, these new arrangements are already, in some shadow form, being applied by the UK Border Agency. How many staff have already been transferred from HMRC to the UK Border Agency and are shadowing either immigration officers or being taught their roles? Information on training in shadow form should be readily available to tell us what is being done, what is being put forward and how staff are being informed. Presumably, they are half doing the job.

If no staff have been transferred or identified, we need to understand how many will be transferred at any one time and how many will be subject to training immediately. Potentially, there would be a hold-up in starting this process if a training course has to be undertaken. Fourteen weeks is either a very long time or it is not a long time at all. It depends on what has to fit into it and how much “personal” or “personnel” training will have to be given. I do not think that we are clear on how much training is involved. If a person comes from HMRC to be trained as an immigration officer, he or she will have to be trained in all that immigration officers do and an immigration officer will need to be trained in all the revenue aspects of the job.

As the Minister said, the training will be complex because people will have to understand the legislation and, in particular, certain bits of legislation—even the slave trade, perhaps. All that information has to be imparted. I am more worried about the people being transferred than I am about those who will come into the new agency. The people being transferred really need a proper training package.

How many people are already within the UK Border Agency on either a shadow or a temporary basis and what sort of training have they had? How many are due to transfer to the agency from HMRC and when, if they have not already done so? If some have been transferred, how many more are to be transferred? How much training has already taken place and will those trained be ready to start whenever these provisions come into effect? I suspect that we are more than three-quarters of the way down the line, as we so often are with legislation. Everything has happened except the final imprimatur, which comes from our having spent an enormous number of days talking about an enormous number of clauses to enable the implementation of what is already half-implemented.

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My Lords, the noble Baronesses have rightly homed in on the important area of training. Clause 12 sets out the supplementary provisions relating to the Director of Border Revenue’s powers to designate customs revenue officials. Before making any such designation, the director must be satisfied that—among other things—the official has completed adequate training. For training to be deemed adequate, it must provide a designated customs official with all the instruction and skills appropriate and necessary to exercise the customs revenue functions conferred upon them fully and properly. Amendment 19 does not, in practice, impose any different requirements from those already imposed by the Bill.

Broadly, training for designated customs officials will mirror that which is given to officers of HM Revenue and Customs who currently exercise customs functions at the border. This current training in HMRC is externally accredited by Edexcel. The training given to those officials will enable them lawfully to discharge all the functions vested in them. The customs training a UK Border Agency frontline official receives will be needs-based and will depend on the official’s role and the customs functions that he or she is to exercise; and whether the official is an officer of HM Revenue and Customs who has transferred to the border force, an immigration officer in the border force, or a new recruit to the border force.

First, I will say a little more about the training of officers of HMRC who have transferred. Some 4,500 officers of HM Revenue and Customs will transfer to the UK Border Agency to continue carrying out customs functions. On transfer, they will lose their status as HM Revenue and Customs officers but will be designated as customs officials. They are already adequately trained and have expertise in exercising customs functions. Current training for officers of HM Revenue and Customs involves guided learning for two weeks, a residential course of six weeks and training at a port or airport for four to six weeks, depending on the location and the skills required.

Existing immigration officers of the UK Border Agency will be trained to exercise customs functions where required for the role that they are undertaking. The training that they receive will depend on the customs functions that they are to carry out. The skills and knowledge covered by existing HMRC training will continue to form the basis of the training for those in the agency who are required to exercise customs functions. Once adequately trained, immigration officers will be designated as customs officials, subject to them meeting the other designation criteria. Some immigration officers are already trained to carry out questioning for customs purposes at the primary checkpoint and search freight for customs purposes.

Finally, let me say a little about new recruits to the UK Border Agency. A new UK Border Agency training programme for operational staff working at the border is currently under development. For new recruits, the training programme will support the development of the unified border force culture and cover both immigration and customs work, enabling staff to operate across all border controls. The set of skills and knowledge covered by existing HMRC training will continue to form the basis of the training for those in the agency, including new recruits who are required to exercise customs functions. New recruits will undertake an accredited foundation course, including training to enable them to carry out customs functions where this is part of their role. Once adequately trained, new recruits who are to carry out customs functions will be designated as customs officials.

Customs training covers a wide range of areas, including relevant legislation; customs regimes, such as the common agricultural policy; targeting for customs purposes; disclosure-handling of material gathered during criminal investigation; questioning and note-taking; how to arrest and caution; custody, charging and bail procedures; rules of evidence, interviewing, witness statements and giving evidence; customs allowances; dealing with EU and non-EU goods; calculation of duty and VAT; how to take payments, seize or detain goods and vehicles, and issue paperwork; prohibitions and restrictions; recognition of, and how to deal with, controlled drugs and offensive weapons; searching persons, baggage and vehicles; personal safety training; and, for officers working in Scotland, specific training in the working of the Scottish legal system and the different regimes in place there.

The border force also trains its officers to help them deal with difficult situations. The training delivered to officers includes modules on stress awareness, personal safety training, and cultural and customer awareness to assist them in communicating with all passengers in a professional and sensitive manner, and in resolving difficult situations. Following on from their training, policy guidance and education is available for staff dealing with specific stressful posts, and an employee assistance programme is available to support all UK Border Agency members of staff 24 hours a day and 365 days a year. In addition, the border force has arrangements in place to ensure that staff can communicate effectively with non-English speaking passengers arriving in the UK and with those who the agency encounters during the course of its business within the UK.

A number of front-line officers are qualified in a variety of languages and can provide assistance immediately. The UK Border Agency also has access to over 2,000 interpreters via a database who can assist by telephone or attend in person. This service provides access to speakers of over 50 languages.

Some 4,500 HMRC officers will transfer formally to the UK Border Agency on the Bill receiving Royal Assent. They are already trained and skilled on the customs side, and immigration officers’ training to take over these functions has already begun. The figures I have at the moment show that 2,600 officers have already completed the training.

On the basis of what I have said, I hope the noble Baroness will agree that the amendment is unnecessary and that she will feel able to withdraw it.

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My Lords, I thank the Minister for that detailed reply. It will be helpful to have on the record what standards are expected and the details fleshed out far more than we heard in Committee. On that basis, I am happy to withdraw the amendment.

Amendment 19 withdrawn.

Amendment 19A

Moved by

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19A: After Clause 21, insert the following new Clause—

“Use of personal data of UK citizens

Nothing in this Act shall enable any of the officers designated under this Part to use any personal data of UK citizens to restrict their right to enter or leave the United Kingdom for legitimate purposes.”

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My Lords, recent publicity has drawn attention to the information that will be required by the UK Border Agency of those who want to travel from this country. This is a good opportunity to ask the Government to explain exactly how much advance information will have to be provided and how far in advance it must be done.

We have discussed on many occasions the progress of the e-borders system that will enable passengers’ details to be held and processed while they pass through an airport, and how identification will be improved by the use of biometrics such as fingerprints and eye scans. However, I do not believe that anyone anticipated that information such as telephone numbers and e-mail addresses, credit card details, addresses of destination and travel information would all be required. We are aware of the advance passenger information that will be collected, but is it really desirable or practical, or within this country’s values about which we hear much spoken, that every journey is to be scrutinised and identified by the provision of information to the authorities, having been collected by the people about whom we are talking?

Will the Minister tell us today exactly what advance information is going to be required for any journey both now and in the future, for how it is anticipated the information will be held, and how long it will affect those who make a last-minute decision to travel somewhere or have business requirements that suddenly arise? The security of our borders and the work of the UK Border Agency are totally germane to this. Private citizens in this country are not accustomed to having their movements subjected to interrogation by the authorities. For generations, citizens have been free to come and go, as our passports say, without let or hindrance. Situations change and we appreciate that things may have to be tightened up, but the limitations that the Government, in their enthusiasm to record the details of travellers’ movements and make sure that our borders are secure, are proposing to put on our right to roam around the world need to be clear. It may be that the newspaper reports have exaggerated the situation, but if that is so, the Minister has an excellent opportunity to clear it up today. I beg to move.

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My Lords, I am grateful to the noble Baroness for tabling this amendment to discuss further this important issue, which was brought up today at Question Time by the noble Lady, Lady Saltoun of Abernethy. I shall look forward to hearing the reply from the Minister. International and EU requirements place plenty of onus at the moment on us to supply passenger list information, and there are adequate international agreements on what information is required, so that each country can check any threat—obviously, a terrorist one in particular but also from serious criminals, and so on, who may be travelling from here to there.

However, the reports that any more advanced travel plans will have to be lodged are worrying. I will briefly give three categories of people for whom that, at least, will be extremely difficult. There are the young and the retired, who can travel week after week; those in their gap years can change their plans at the last minute, while retired people have that same freedom—they are not tied by having to return to work in two weeks and may, on the spur of the moment, go where the weather is better. Why should they need to furnish anything in advance? If they are in the south of Spain and fancy taking the ferry to Morocco, why should they not be able to do that at will?

There is also last-minute travel, particularly on business. One might have all sorts of reasons for having to travel at the last minute or change one’s plans; partly business or, sometimes, family disasters such as death, et cetera. This even comes down to someone as specific as a yachtsman, whose travel plans depend entirely on the direction of the wind. I hope that the Minister will be able to reassure us that, when we leave this country, the Government do not have plans to start requiring us to furnish anything other than our first destination. That is the extent of what the Government should require, and then to get to know when we are coming back. They get substantial information at the moment, as I said, from passenger lists, which carriers are required to furnish; beyond that is really a step too far.

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My Lords, I apologise for not having spoken in any earlier part of this Bill, but I think that the noble Lord, Lord West, understands my concerns relating to this exact issue and has helpfully allowed me to talk to his officials about it. However, I want to get something from the Dispatch Box and on the record on this important issue of “without let or hindrance”. Would the Minister confirm that no part of the powers of the Border and Immigration Agency have been devolved, or are intended to be devolved, to any commercial organisation or any other non-governmental body? A particular example would be any employee of BAA.

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My Lords, this amendment is very important, bearing as it does on our freedom of movement and travel. The noble Baroness, Lady Miller, has already mentioned several categories of people who may have to make journeys at very short notice. To that group, I would add parliamentary visits to the EU in Brussels, or to look at foreign elections at short notice. I hope that the Government are taking into full account all these special needs, which may occur unexpectedly.

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My Lords, this is my first intervention and probably my last on this Bill but, when I saw this amendment and recalled the reports that I had seen, I thought that perhaps this was an opportunity to say something.

If the reports that I have seen are to be believed, this is a frightening situation. According to these reports—and I hope that the Minister will be able to deny them—all British citizens and everybody else, if they leave this country, whether by sea, rail or air, will have to give advance notice of where they are going and give an itinerary as well. The report that I saw went even further than that; it seemed to suggest that, eventually, the provision would apply to internal journeys, too, so that if you went from London to Swansea by train you would have to give a note of where you were going and what you were going to do there.

That is such a restriction of the freedom of people in this country that I simply cannot believe that there are people in the Government or the Civil Service, or even the police or security services, who would even dream up such a proposal. I hope that the Minister will be able to reassure us and say that we shall be able, as previously, to go about our business without interference from government snoopers.

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My Lords, this amendment, spoken to so ably by my noble friend and the noble Baroness from the Liberal Front Bench, underwrites a major problem that government and bureaucracies have, which is collecting information that you do not need and, quite often, not collecting information that you do need. Some of your Lordships may have seen that brilliant German film about the Stasi—I think that it was called “People Like Us”, or something like that—which illustrated the way in which a massive effort is made by a national bureaucracy to collect a lot of wholly irrelevant information.

I am a member of Sub-Committee F of the EU Select Committee. At present, we are looking at money-laundering and we have had various government agencies along to tell us about the information that they are collecting. Obviously, I shall not comment on anything that we have learnt; all I would say is that there is a real danger of overkill, which is simply not taken account of or gripped by the only two groups of people who really can get to grips with it—Ministers and Parliament.

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My Lords, information is obviously an essential tool in support of law enforcement and national security and is key to our ability to secure the border effectively. That is why Part 1 establishes a comprehensive framework covering the use and disclosure of customs information, including personal customs information. I understand that the amendment is meant to probe e-Borders, rather than the Bill itself. We are exploiting modern technology such as e-Borders to make our border even more secure and to target terrorist suspects, known criminals and would-be illegal immigrants before they can do harm, so as to protect the public. To do that, we need to monitor all cross-border travel. That does not mean that we are interested in where law-abiding members of the public go on their holidays, but it is a sad fact that terrorists and criminals make use of the latest technology and we would therefore be negligent if we did not harness the same technology to protect our border. An increased use of technology enables us to target our resources where risks have been identified and facilitate travel where they have not.

We must make clear that e-Borders information is information that people give to carriers. We will not ask people for it—the carriers have a liability to provide it. The carriers can only provide the data that they have received from passengers: there is no question of passengers having to complete a form or questionnaire when they travel. The data are provided electronically by the carrier—that is what some of the debate on e-Borders is about. It is not absolutely clear how that will be done, but it will probably be via some form of data transfer. This is travel document information, known as the “passenger name record”. When details crop up of high-risk movements and people whom we have background data on, we will be able to find out more about those people.

E-Borders was successfully trialled through a prototype, Project Semaphore. It did not stop people making short-notice journeys, or several journeys in a row. It was the subject of extensive consultation with the travel industry. The then Prime Minister announced plans for an e-Borders system in September 2004. Up until February 2009, there were 82 million passenger movements, which generated 35,000 alerts. More than 3,000 arrests were made for crimes including murder, rape and assault. The arrests also included a number of counterterrorist interventions. Significant numbers of passengers were properly refused leave to enter the UK on the basis of this information.

The e-Borders programme has been subject to appropriate scrutiny both by Parliament and the Information Commissioner’s Office, with which we engage regularly. The code of practice on data-sharing was drawn up in consultation with the Information Commissioner’s Office and is available in the Commons Library. We are due to publish a review of that code shortly.

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. Clause 16 sets out the limited and strictly prescribed exceptions to those duties. The framework ensures that the operational needs of the border force to protect the public from harm are balanced against the right protections for personal customs information. I do not consider that a further restriction, such as that proposed in this amendment, is necessary or appropriate.

I know that the noble Baroness does not intend to impose in this Bill a sweeping ban on the use of information, but instead seeks to identify what information is in the e-Borders programme. Of course there is no restriction on the right of UK citizens to enter or leave the United Kingdom for legitimate purposes.

The noble Lord, Lord Puttnam, raised an issue that I know is being dealt with. He has talked at length with the deputy chief executive of the border force. I apologise for the confusion and problems that he has confronted and assure him that there is no intention that anyone other than properly designated border force officials will be responsible for entry to, or departure from, this country. I will write to him with a fuller reply on that point.

It is important to knock into touch the claim that we will all have to fill out long forms detailing where we are going and where we will be going next. The information is just the data that the airline holds when one applies for a ticket. That airline information has already given us an amazing ability to home in on people who are a danger to this country. People who are travelling normally will not notice anything different.

Sometimes scare stories are put out that are not real. Information is fundamental to the delivery of many modern services. There have been some bad hiccups over data protection and IT systems, not just for the Government, but also in the private sector. However, to try to turn back the clock 30 years and pretend that we do not have to use information to protect and administer ourselves is mad. E-Borders will fulfil a very important role. It will not impinge on the privacy of individuals, or their ability to live their lives with no interference from the state. However, it will enable us to get those who intend to do us harm, criminals and those who have no right to come into this great country of ours. On that basis, I call on the noble Baroness to withdraw her amendment.

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My Lords, can the Minister clarify one thing? He says that there is no intention to stop people travelling for legitimate purposes. Would he define a “legitimate purpose” as absolutely everything that does not constitute a criminal purpose?

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My Lords, that is quite a difficult question which I need to think about a little more carefully. Can I have a think about exactly what a “legitimate purpose” is, and get my lawyers to look at exactly what it is, before I make a statement here? I refuse to call myself a simple sailor again, but I can see myself stepping into a great Pooh trap over some definition.

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My Lords, can the Minister confirm that there is no intention to extend these measures to internal travel, and that they are for cross-border travel?

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My Lords, absolutely. This would not apply to travel between, say, England, Scotland and Wales. As I am sure that the noble Lord is aware, however, we are coming up on the issue of the common travel area. The Republic of Ireland and ourselves are keen that we should have this e-Borders capability, and the Irish will have a similar thing for our people going there for exactly the same reasons: being able to ensure that there is no trafficking or criminal activity, and that there are no people trying to get around our immigration laws or terrorist events. Apart from that, within Great Britain, this would not apply.

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My Lords, I thank the Minister for his reply. He has probably missed a golden opportunity to say exactly what information will be required. He did not do that but, as I understand it, he is basically saying that it is passport details, date of travel and, probably, original destination.

There were some quite scary stories, however, and it seems that no one has made any effort to answer them; indeed, they have not been well answered today. We have raised the subject, and I am sure that people will come back to it in due course. However, I do not intend to take to take it any further this afternoon. I beg leave to withdraw the amendment.

Amendment 19A withdrawn.

Amendment 20

Moved by

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

“UK Border Agency detention

In the application of PACE orders by virtue of section 22—

(a) no person may be detained in an office of the UK Border Agency for a period exceeding 3 hours, and(b) no person may be detained in a police cell under powers granted to the UK Border Agency for more than 5 days.”

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My Lords, I shall be quite quick with this, and I hope that the Minister will accept it; it is straightforward. It would put into the Bill the limits on the length of time that someone may be held in different types of facility by the UK Border Agency. By definition, we are almost definitely talking about either illegal immigrants or somebody who has been apprehended at the border for other reasons. It is necessary that we put this in the Bill because the Government have created this confusing bundle of powers, sharing around customs and revenue functions to different officials, and then adding to that those who will be covered by the PACE provisions. That means that police-type functions are being envisaged for people who are not police. We would like to be clear about who is allowed to do what under these provisions.

The Government introduced the new clauses on PACE powers so that we would have them in the Bill. That is well and good, but in Clause 22(4) we have a reference to people who are held in UK Border Agency detention if they are in,

“an office of the UK Border Agency”.

I would like to explore how, if at all, an office of the UK Border Agency might be categorised. Plainly it is different from a police cell. The Minister made some efforts, in correspondence and in Committee, to describe what was meant by “short-term” accommodation. In Committee, he explained that places that are now designated as short-term holding facilities will, or may, in future be used to detain persons under customs and revenue investigation powers. Do offices of the UK Border Agency fall into that category?

My amendment makes it absolutely clear that there is a firm difference between premises partly occupied by the UK Border Agency—that is one of the definitions given in Clause 22(4)—and police cells. I do not want to see any confusion about where people can be held and for how long. If they are held in an office of the UK Border Agency by a member of staff of the UK Border Agency who has rights under PACE to hold people, they can be held there only for three hours to sort the matter out. If they want to hold a person for longer, they will have to find a policeman and put them in a police cell before the three hours are up. Under the UK Borders Act, once they are in a police cell, they can be held for no more than seven days, as the Minister said in his letter. We need to make it absolutely clear that they can actually only be held for five days. The seven days applies only to someone who is to be deported. However, this is an awfully long time to be held in a police cell and we want to be very clear what this is all about.

I hope the Minister will accept that these limits not only must be observed but are germane to the Bill and should be clearly stated. If there are rights under the Bill and there are responsibilities under PACE as regards arresting and holding people, it is proper for the relevant measure in the UK Borders Act to be included in the Bill. I beg to move.

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My Lords, this amendment seeks to limit the time that a person can be held in a UK Border Agency office—the place to which he is initially taken under Clause 22(4)(a)—which is normally occupied by designated customs officials. It also deals with detention in police cells.

The Minister's letter of 10 March went into some detail describing the categories of powers exercised by UKBA officials, and now by some 4,500 HMRC officials under the Bill. There is administrative detention under the 1971 Act of a person pending his examination, removal or deportation; detention under the UK Borders Act of a person who may be liable to arrest or who is the subject of an arrest warrant, and detention following arrest by an immigration officer for an offence under the 1971 Act. In addition, customs officials have powers of arrest and detention under the Customs and Excise Management Act 1979, which can now be exercised presumably by immigration officers as well.

As we understand it, the short-term holding facilities mentioned by the noble Baroness, Lady Hanham, could be used for all three categories, and by the police to detain people pending charges for ordinary criminal offences or terrorist offences committed at a port. This means that the population of the facility could be extremely variable in terms of the seriousness of any offence they may have committed, and the appropriate degree of security that should apply to them.

The new definition of a short-term holding facility also allows a person to be detained indefinitely in one of those facilities, as the amended definition read out by the Minister in Committee at col. 287 of Hansard confirmed. I think that the maximum length of time that a person can be held in a UKBA office—I am subject to correction if I am wrong—is dealt with in Section 2 of the UK Borders Act 2007. It prescribes that a person may be detained only for three hours. Although there is no reading across to Clause 22 in the Bill, I take it that the powers which are exercised to hold somebody in one of these offices would be the powers in the UK Borders Act. If not, should there not be some reference back to the UK Borders Act so that we know that the three hours applies to both?

As regards detention in a police cell, the noble Baroness, Lady Hanham, has put her finger on a problem that exists and which has been extremely troublesome from time to time. Where the police detain someone and hold them in a cell under immigration Act powers, they are normally transferred fairly rapidly to UKBA officials, but delays do occur, and the limit of seven days is exceeded in certain cases. We need to watch this very carefully and take steps under this Bill to see that the rules are properly observed, which they are not always at the moment.

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My Lords, this amendment would impact the UK Border Agency’s operational effectiveness, and I must resist it. The noble Baroness, Lady Hanham, asked whether police-type functions are envisaged for border force officers. The answer is yes. They will have powers of arrest, detention and other enforcement powers, as immigration HMRC officers currently do. That is why it is essential to apply PACE to these officers.

It might be helpful if I explain that the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 currently allows a person to be detained following arrest for a maximum of six hours in a non-designated office of HM Revenue and Customs. This is a reasonable period, and it currently enables HM Revenue and Customs to deal effectively with a significant number of arrested persons at its offices at ports and airports. Cases which may be resolved within a six-hour period are dealt with without the need to transfer arrested persons to custody suites or to police stations.

The arrested person is protected by the application of the PACE codes of practice regardless of whether he or she is at an office of HM Revenue and Customs or detained in a designated custody suite or police station. As I have said previously in debating the application of PACE, PACE (Northern Ireland) and the PACE codes to the UK Border Agency, 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, designated customs officials of the agency have the same powers and are required to provide the same safeguards.

That includes ensuring that the same power as is currently in place to allow a person arrested for a customs offence to be detained at an office of HM Revenue and Customs for six hours is available in respect of future detention of persons by designated customs officials in offices of the UK Border Agency. Accordingly, Clause 22 will impose a similar limit on the detention of a person in a non-designated UK Border Agency office of six hours following his or her arrest by a designated customs official.

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My Lords, I am sorry to interrupt the noble Lord, but we might be able to get an answer on this point. I have been absolutely clear all along that the holding power of arrest under PACE was three hours, and the Minister keeps talking about six hours. The noble Lord, Lord Avebury, has very kindly just handed me the UK Borders Act, which states absolutely clearly:

“An individual may not be detained under this section”—

which is on the designation of an immigration officer—

“for longer than three hours”.

I had never understood it to be other than three hours. We discussed it as three hours in Committee ad nauseam, and no one corrected us. I believe that it is three hours unless the officer is a policeman, in which case the police are governed by different legislation.

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My Lords, when the Minister replies, could he also say what is meant by “short-term holding facility” in Clause 25? We touched on this in Committee, but I am not sure that we got an answer.

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My Lords, as I understand it, unless the Box tells me I am wrong, the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 currently allows a person to be detained, following arrest, for a maximum of six hours in a non-designated office of HMRC. That is what I understand, unless I am told otherwise. The three-hour limit is the power referred to specifically in subsection (3) of the UK Borders Act on power to detain at a port. The other power is a standard over-arching power to hold someone for six hours. Section 30 of PACE allows a person to be detained at any HMRC or police office for a period of six hours. The provision in the UK Borders Act is for a different purpose.

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My Lords, perhaps the Minister would confirm that an immigration officer or a customs officer is entitled to hold someone for three hours, which was my clear understanding. Perhaps no one here can help us. Section 2(1)(a) of the UK Borders Act, referring to detention, says,

“may be liable to arrest by a constable under section 24(1)”.

That is all the Police and Criminal Evidence Act goes on. Then it says that a designated immigration officer who detains an individual, which is what we are talking about, can hold for three hours.

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My Lords, there is confusion here. The three-hour limit is the power in Section 2 of the UK Borders Act 2007 for a designated immigration officer, but the six-hour limit comes in the Police and Criminal Evidence Act, as I have stated. Clearly, there is confusion here which needs to be resolved and I shall ensure that that is done. Those involved have argued with me that they need six hours because in that time they could clear up a problem and send someone on his way without a problem. The shorter period of time would cause them problems as they might not be able to resolve the issues.

The noble Lord, Lord Hylton, asked about the UK Border Agency office. It is modelled on an existing PACE provision: HMRC offices equipped and managed identically to police stations, including cells and so on, with an interview room and the ability for overnight accommodation for those arrested for customs offences.

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My Lords, Clause 22(6) states:

“A person may be transferred—

(a) between UK Border Agency detention and Revenue and Customs detention”.

Whether the period is six or three hours, will that be the total number of hours or will each of those detentions incur a new period of detention? Have I made myself clear?

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My Lords, it will be six hours in total. Of course, HMRC and the old BIA are now one body. It will be six hours in total for them to investigate whether it is an immigration or a border and customs issue.

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My Lords, we have a problem here. Under Section 2 of the UK Borders Act 2007, an immigration officer can detain someone for only three hours, whereas the customs, under the legislation quoted by the Minister, have always been able to detain someone for a period of six hours. In Clause 22(4), we are talking about an office of the UK Border Agency. The noble Lord has just said that because the customs function is to be integrated within the UK Border Agency, it has suddenly acquired the power to detain someone for six hours, when up until the point when the Bill comes into effect, no immigration officer will have been able to detain someone in one of the offices for longer than three hours. We have just learnt that this afternoon, somewhat to my distress. I was involved in the detail of the UK Borders Act proceedings in Committee and on Report and I thought three hours was a perfectly legitimate maximum. To learn that we have suddenly doubled that to six hours is a matter of enormous concern. I hope the Minister will be able to clear up that discrepancy.

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My Lords, I hope I can clarify this a little. The three hours relate to waiting for the police to come along and investigate; the six hours are for a border force official to do the investigation. I think we need more clarification on this. I am not happy with the advice I am getting. I agree that there is confusion here, which is not satisfactory. This needs to be resolved, and I shall do that.

Do noble Lords wish me to go on to the issue of five days and seven days? I do not know how it is best to take the other issue forward. I will take it away, clarify the position and write to noble Lords who have attended this debate. I hope that there is sense and logic behind it. If there is, we will leave it as it is; if there is not, I undertake to come back and do something about it in the Bill.

As regards the five and seven days, the noble Baroness is right. The extra 48 hours are for us to be able to move someone from a port. Say he has come in to Heathrow and we know that there is a flight we can get for him, but it is 24 hours away, it would be madness to transfer him to some other facility after five days and then have to move him back again. The period is five days absolutely, but the seven days are because there is a 48-hour period when we know a person will go on a flight. That is how we have arrived at that seven-day period.

I am sorry that that was a rather unsatisfactory answer on the first matter. I will take it forward in the way that I said. I hope that on that basis the noble Baroness will be happy to withdraw her amendment.

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My Lords, is what the Minister said about five and seven days the meaning of “short-term” holding? In that case, how long is short-term?

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My Lords, as I understand it, “short-term” relates to the facility in which we keep people for the six or three-hour period, not the five-day period.

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My Lords, can the Minister bear in mind that what we have been talking about in relation to three hours and six hours arises only in a clause that deals with the application of PACE orders? However, the Act will apply to Scotland also. I would be grateful if the Minister could look at the issue of three hours and six hours and see how it impacts in relation to Clause 24, which concerns investigations and detention in Scotland. Exactly the same points might be relevant but have to be dealt with separately with regard to the legislation that presently applies in Scotland, which is different from PACE.

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My Lords, I will certainly do that.

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My Lords, I am grateful to have had this debate because it was important to have done so. I will be extremely grateful for the Minister’s clarification on this because it looks to me as if we may need three items in the Bill to clarify this. I hope that we will be allowed to come back to this at Third Reading in the light of what the Minister says. I think the Third Reading rules will allow us to do so, so we might be able to clarify both the points that have been raised. I thank the Minister for his honesty in admitting to not quite knowing the answer and look forward to receiving his letter. I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Amendment 21 not moved.

Clause 30: Complaints and misconduct

Amendment 22

Moved by

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22: Clause 30, page 23, line 26, at end insert—

“(2B) Regulations made under subsection (1) or (2A) may make provision conferring functions on the Independent Police Complaints Commission in respect of the exercise of immigration functions, customs functions and the provision of services pursuant to arrangements relating to the discharge of those functions whether in the UK or overseas.”

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My Lords, this amendment ensures IPCC oversight of the exercise of immigration and customs functions and of the provision of services under arrangements for the discharge of those functions, whether in the UK or abroad. It provides that complaints can be made to the IPCC about the conduct of customs and immigration officials, whether they be in the UK or at the juxtaposed controls that we discussed at length in Committee. At that point, we moved a similar amendment to this one, Amendment 37. I refer to col. 293 of the Official Report of 25 February. We have now changed that amendment to recognise the roles that were added to the functions of the IPCC in what is now Clause 30, which I very much welcome, extending the remit of the IPCC to include the private contractors of the UK Border Agency.

The Minister said then that there was no need to provide power for independent investigation of misconduct by officials at overseas posts because they did not exercise enforcement powers. On juxtaposed controls, the Minister said:

“The Government are considering whether an independent oversight system can be put in place for matters arising at the juxtaposed controls”. —[Official Report, 25/02/09; col. 295.]

On the escorting of those who are being removed or deported from the UK, he added that,

“the IPCC jurisdiction does not cover detention in the escorting of prisoners on probation outward from the UK. An individual being escorted for deportation ... is really for the Prisons and Probation Ombudsman. There probably is something here that needs a little more looking into. My Box tells me that this is a Prisons and Probation Ombudsman issue but I will look into it a little more because it looks like something could fall between the cracks and I want to look at it”.—[Official Report, 25/02/09; col. 297.]

The importance of provision for independent investigation of complaints of misconduct by immigration officers and the private contractors at juxtaposed controls and in the course of escorted removals, especially the latter, was highlighted by the Outsourcing Abuse dossier, which is now being investigated by Dame Nuala O’Loan. It would be very useful if the Minister could tell us when it is expected to report, because I dare say that we will not make any progress until we know what the recommendations are.

If the Government will not accept the amendment, we need an explanation of how they are going to ensure that misconduct overseas by officials or contractors, particularly at the juxtaposed controls or during escorted removals, can be adequately investigated. We should also like to hear from the Minister about the division of responsibility for investigation of misconduct within the UK between the IPCC and the ombudsman.

In Committee, my noble friend Lady Miller raised the distinct situations in Northern Ireland and Scotland, where the IPCC remit does not run. On Scotland, the Minister promised to write to my noble friend, but she still awaits an answer to her question. We understand that there has been some correspondence between the Home Office and the Scottish Government on extending the remit of the Police Complaints Commissioner for Scotland to match the extended remit to be granted to the IPCC in Clause 30. We should be grateful for a progress report on that matter.

Regarding Northern Ireland, the Minister said that the police ombudsman there will be given statutory powers to look into serious complaints incidents and conduct matters in relation to the exercise of specified enforcement functions by all border staff and contractors. If it is only specified enforcement functions, does that mean a more limited range of matters than in England or Scotland? Will the enforcement of the police ombudsman’s recommendations be the same as if the complaint had been made in one of the other jurisdictions, and to whom will the Police Ombudsman for Northern Ireland report? In the report on public awareness of the system for complaints to the Police Ombudsman for Northern Ireland, it was found that only 11 per cent of respondents said that they could go to the police ombudsman if they had a complaint. I wonder whether the Minister expects that there would be as low a rate with complaints against the UKBA or customs, where intrinsically the complainants are less likely to have knowledge of the ombudsman's powers.

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My Lords, Clause 30 extends the existing regulatory making power given to the Secretary of State in Section 41 of the Police and Justice Act 2006 so that she can give the Independent Police Complaints Commission an oversight role in England and Wales. This will apply in respect of the exercise of customs functions by officials of the Secretary of State and the Director of Border Revenue, and the provision of services—other than those involving escorting and detention, which fall under Part 8 of the Immigration and Asylum Act 1999—relating to the discharge of those customs functions and the immigration and asylum-related enforcement functions referred to in Section 41(1) of the 2006 Act.

As I think the House is aware, oversight of the provision of services involving escorting and detention is already undertaken by the Prison and Probations Ombudsman. The noble Lord’s amendment would enable the Secretary of State to make regulations giving the IPCC an oversight role in respect of the functions to which I have referred not only in England and Wales, but in Northern Ireland, Scotland and overseas.

As has been mentioned, in Committee a similar amendment was proposed by the noble Lords, Lord Avebury and Lord Roberts of Llandudno. However, there has been no change to our view that any such power to extend the IPCC’s jurisdiction is unnecessary and would be inappropriate. I do not believe that the IPCC would want that.

The Government are committed to securing appropriate, proportionate oversight of all complaints, incidents and conduct matters relating to the UK Border Agency or its contractors, but it has always been and remains our intention that the IPCC should have a role only in relation to the UKBA in England and Wales, just as it does in respect of the police and the other organisations that it oversees.

I should like to explain why we think it is inappropriate to give the Secretary of State power to extend the IPCC’s jurisdiction, as envisaged in the amendment. First, it is not clear that the Government would be able to secure the necessary overseas powers that the IPCC would need in order to investigate matters in the way envisaged in the amendment. Secondly, if it is intended to propose that the IPCC look at matters overseas involving detention and escorting, this would be a significant creep in the scope of the matters to be overseen by it. Further, Section 41(3) of the Police and Justice Act specifically carves out detention and escorting matters from the IPCC’s remit in view of the existing oversight role given in respect of those matters to the Prison and Probation Ombudsman. We would not want to change that position.

The policy intention behind Section 41 of the Police and Justice Act 2006 was to ensure that the IPCC provided independent oversight of UKBA officials exercising enforcement powers consistent with its oversight of the police and other law enforcement agencies. The amendment would give the IPCC much greater powers in respect of the border force and its contractors than it has in relation to the police and other agencies that it oversees. We feel that that would be inappropriate.

The noble Lord, Lord Avebury, has made clear that he has concerns about the oversight arrangements for the escorting of immigration detainees overseas. I shall try to explain arrangements in this area. Where a detainee has displayed disruptive behaviour or where we believe he will not comply with removal directions, escorts are provided on the aircraft who are responsible for the detainee on the flight, and remain with detainees until they are handed over in destination countries. Where the detainee is known to have a medical condition, a medical escort is provided if required.

Escorting officers are regularly monitored at the airport up until the point of departure, which tends to be the point at which a detainee becomes disruptive. It is often an extremely difficult and very unpleasant task for them to do. They are permitted to use reasonable force against non-compliant or disruptive detainees, but only where it is considered necessary and as a last resort. They are trained in approved methods of control and restraint including, where appropriate, the application of mechanical restraints such as handcuffs.  Restraints will be used only as long as they are assessed to be necessary. After each job, escorts are required to provide end-of-task reports. These include use-of-force reports if force was employed. All uses of force must be recorded and reported to the contract monitor, who reviews every incident to ensure that the use of force is proportionate and reasonable.

The Prisons and Probation Ombudsman is the correct body to oversee complaints, incidents and conduct matters relating to detention and escorting functions undertaken by UKBA's officers, officials and contractors. In essence the Prisons and Probation Ombudsman investigates deaths in detention and also considers complaints where detainees are not content with the response they receive from the border force or the contractor. This oversight is not restricted by geographical boundaries and therefore the type of escorting work I have just described can be referred to the Prisons and Probation Ombudsman if the complainant is not satisfied with the border force’s handling of their complaint. This oversight ensures that there is suitable scrutiny of matters arising while immigration subjects are detained, escorted and removed from the UK.

The noble Lord, Lord Avebury, referred to the Home Secretary’s appointment of Dame Nuala O’Loan to review independently the border force’s handling of the allegations that appeared in the Independent newspaper’s Outsourcing Abuse dossier. This concerns cases where it was suggested that some of those removed from the United Kingdom had been assaulted by the border force’s staff and its contractors. I am afraid that I cannot give an exact date when the report will come out. Under new arrangements, all allegations of serious misconduct against the border force staff and contractors are now investigated by the professional standards unit, a specially trained team of investigators independent of other business areas. These arrangements were implemented in response to the Complaints Audit Committee’s recommendations for improving the quality of investigations. The Prisons and Probation Ombudsman provides a robust oversight of detention complaints where the complainant is dissatisfied with the investigation carried out by UKBA investigators.

UKBA officers and officials are exempt from prosecution under French or Belgian law for acts committed in the UK control zone at juxtaposed controls in those countries where the relevant acts take place in the course of the officers’ or officials’ duties. Under the terms of the treaties in place for juxtaposed controls, those matters are investigated by the authorities of the host state and all evidence gathered is handed over to the relevant police authorities in the UK for consideration under UK law. All criminal matters that do not relate to the exercise of official functions in a UK control zone are a matter for the French and Belgian authorities and will be processed in accordance with their domestic legislation.

I am sure that your Lordships will also wish to know what oversight there is of contractors at the juxtaposed controls and, in particular, of those who search freight. Section 40 of the Immigration, Asylum and Nationality Act 2006 provided for and regulated the work of contractors searching freight at border control. The UK border force currently employs Eamus Cork Solutions—ECS—a French security company at juxtaposed controls. Given the limitation on its jurisdiction to England and Wales, the IPCC is not responsible for overseeing those contractors. However, the legislation provides for a Crown servant to be appointed to monitor the exercise of these powers, to inspect the way in which they are exercised and to investigate and report to the Secretary of State any allegations made against a contractor.

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My Lords, who will do that? Can the Minister tell us?

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My Lords, I asked exactly the same question this morning when I was being briefed. The role of the monitor is currently carried out by a designated senior customs official.

To strengthen these arrangements in the light of the formation of UKBA, consideration is being given on whether an independent system of oversight can be put in place in respect of matters arising at the juxtaposed controls that involve border force officers, officials and/or contracted staff and which, though they do not warrant criminal investigation, represent allegations of serious misconduct. Currently such matters would be investigated by the border force’s professional standards unit. It is not, however, subject to independent oversight.

Turning to oversight of matters arising at the non-juxtaposed overseas locations, such as those where immigration liaison managers, formerly known as airline liaison officers, operate, I can confirm that no enforcement powers are exercised at these locations.

With regard to Northern Ireland, the Government plan to introduce in a Bill later this year proposals for the Police Ombudsman for Northern Ireland to play a similar role there to that which the IPCC has currently in England and Wales. Oversight in Scotland is already provided by the Crown Office and Procurator Fiscal Service, which has a role to play in case of death or inference of criminality. I apologise for not having sent the letter and will ensure that I do so to give the best response on that.

If there are any points that I have missed, I shall be happy to write to the noble Lord, but I hope that he is reassured that the existing and planned provisions will ensure that such serious matters are subject to an appropriate and proportionate level of scrutiny and will therefore feel able to withdraw his amendment.

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I am grateful to the Minister for that comprehensive reply, although it raises some further anxiety in my mind, particularly over his response to the question on the complaints made at the juxtaposed controls. He said that a senior customs official deals with them, but that person cannot be fully independent now that we are talking about the integration of the customs and immigration services. However independently minded the person may be, he is not technically independent of the service that he is investigating. That arrangement must be looked at again to see whether the person who is investigating the complaints could be separated entirely from those whom he is looking into.

The Minister is aware that I have a particular anxiety about the situation with juxtaposed controls, where I do not think that we exercise real oversight. He confirmed that when there was a case of alleged criminal misconduct by any of the UK staff or contractors, it would be for the French or Belgian criminal authorities to look into it. We do not get any knowledge of the reports that are made to the French and Belgian authorities, but this Parliament should be aware of what is going on. We have always said that the juxtaposed controls are not liable to the same kind of parliamentary scrutiny as the services of the immigration authorities in this country. The noble Lord confirmed what we have always feared. There is not the same oversight as if the events took place at Yarl’s Wood or at detention offices at Heathrow or Gatwick. The juxtaposed controls are less open to scrutiny and, as far as I know, there has never been a report laid before your Lordships’ House or another place summarising the complaints that have been made to the French or Belgian authorities about the treatment of people detained in those centres.

With regard to what the Minister said about Scotland and Northern Ireland, we will await the reply that he has promised to give to my noble friend. We will digest that and the other helpful remarks that he has made about these services. Meanwhile, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Amendment 23 had been withdrawn from the Marshalled List.

Amendment 23A

Moved by

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23A: Before Clause 39, insert the following new Clause—

“Exceptions to application of this Part

Nothing in this Part shall affect an application—

(a) which has been submitted at any time in the twelve months prior to the commencement of this Part by any person for limited leave to remain in the United Kingdom, or(b) made prior to the commencement of this Part by any person, for the following—(i) indefinite leave to remain in the United Kingdom; or(ii) British citizenship.”

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My Lords, the principle behind this proposed new clause, which would be inserted before Clause 39, is fairness. The Government are seeking to change the routes in this Bill for those applying for various categories of naturalisation and residence in this country. However, we have some issues with some of the planned changes. The people who have faithfully adhered to the current rules and thought that they were firmly established on the road to citizenship should not now have the rug pulled from beneath their feet. They have an expectation of a timescale in which their naturalisation will be fulfilled. Since the last debate in Committee, I have been inundated, as I am sure have other noble Lords, with letters and messages from people in categories that my amendment would help. They have movingly and eloquently expressed their worry, anger and distress that the Government are prepared to muck them about yet again. The Government have already changed the highly skilled migrant programme and applied that retrospectively, even though there is a court case against that, so they must take note of what is happening to those on what used to be called limited leave to remain.

My amendment has two paragraphs. The second deals with persons in the latter stages of the citizenship process who are at the most advanced stage of getting their UK passports and ought to be protected. The Government have recognised this but the debate in Committee did not end as clearly as we had hoped. If provisional arrangements are to be put in place, I would like to hear them explained fully on the Floor of the House. It is imperative that we get protection for those who are on the road.

The first paragraph seeks to protect those who are a little further away from the ultimate goal of citizenship—those seeking indefinite leave to remain but who are currently on limited leave to remain. I deliberately set the period to within 12 months of the commencement because the longer the Government dither and hold on to this, the less certainty people have. We hear so much about people who are in this country illegally, the problems that that causes and the difficulty that the Government have in removing them that we should be making sure that all those who wish to stay for a period of time do so by using legal and proper channels.

We are seeking to prevent retrospectivity. In his letter to us, the noble Lord, Lord Brett, suggested that those who are currently on indefinite leave to remain and those moving into citizenship within the next year or so will not have anything to do under the new citizenship arrangements, but those who are on limited leave to remain will be affected by transitional arrangements. We are seeking to ensure that those who are in the closing stages of limited leave to remain do not get caught up in the transitional arrangements. Many of them have been on the path for three, four or five years and are ready to move on. It seems completely unfair that they should have to go back and start again or even take into account the earned citizenship provisions in this Bill. I beg to move.

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My Lords, perhaps noble Lords have had a chance to see the ninth report of the Joint Committee on Human Rights, which is hot off the press; it was published this afternoon. The committee, of which I am a member, went to great trouble to rush it out in order that it would be available for Report. It is in the PPO and I recommend that noble Lords have a copy, as it is rather relevant. I am speaking to support this amendment on behalf of the committee. The best way that I can do that is by referring to the report, which is unanimous, all-party and beyond party.

Paragraph 1.50, under the heading “Retrospectivity”, says:

“The Bill does not make clear what the effect of the new provisions will be on those whose applications for citizenship are pending on the date at which the Act comes into force, or on others further down the path to citizenship, such as those with limited leave to remain who have not yet qualified for indefinite leave to remain. There are no transitional arrangements ... We expressed our concern about the injustice done by retrospective changes to rules which affect migrants’ eligibility to settle in the UK in our report on the Highly Skilled Migrants Programme”.

That was in 2007.

“Those concerns were subsequently upheld by the High Court and the Government was forced by court order to do what we had sought to persuade them to do in Parliament: honour the legitimate expectations of those who had planned their future lives in the UK on the basis of the law as it stood when they came to this country ... The Minister told the House of Lords that ‘we have yet to make a final decision on how our proposals will impact on people who are already in the immigration system.’ He promised to provide a note explaining to whom the transitional arrangements will apply”.

We put the following in bold, and it is entirely on all fours with the powerful speech that the noble Baroness has just made.

“We urge the Government not to repeat the unedifying spectacle of riding roughshod over migrants’ legitimate expectations of settlement, which undermined many migrants’ faith in the UK’s commitment to basic fairness ... We recommend that clear transitional provisions are made which meet the legitimate expectations of those already in the system”.

That, as I understand it, is the basis of this amendment. It is a matter of great importance in terms of public confidence and we hope that Ministers will feel able to support it and not oppose it.

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My Lords, I welcome the fact that my noble friend Lord Lester of Herne Hill has drawn attention to these important paragraphs in the JCHR report, which I have had the chance to look at while he was speaking.

The amendment tabled by the noble Baroness, Lady Hanham, would provide transitional protection, but only for those who have outstanding applications for indefinite leave to remain or for British citizenship at the time of commencement of the provisions in Part 2, so it is more limited than the recommendations of the JCHR. In Committee, at col. 540, the Minister gave an assurance that any application for naturalisation that had been lodged before the earned citizenship provisions came into effect would be treated under existing arrangements. He went on to say that an examination was in progress to determine what transitional arrangements should be made for those in the immigration system who had yet to submit an application for ILR or for naturalisation.

I asked the Minister at the time whether the transitional arrangements for all those in the system, including those who had applied for ILR, would take into account the ruling, referred to indirectly by the JCHR and my noble friend, upholding the right of legitimate expectation and against retrospection in the Immigration Rules in the case of HSMP Forum Ltd, which I quoted in Committee. I had not given the Minister prior notice of that question but, now that he has had the opportunity to consider it, can we have it on the record that the transitional arrangements, including those for people whose applications for ILR were lodged prior to commencement, will have full regard to that judgment?

I appreciate that there is a problem regarding persons now on limited leave to remain who need to complete five years—or two in the case of closely related family—before they can apply for ILR. The principle should be that they reach the point where they were entitled to apply for naturalisation no later than they would have done in the absence of this Bill. We would be grateful for an assurance to that effect from the Minister.

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My Lords, I will leave the question of the JCHR report for a moment. We are seeking to resist the amendments. Noble Lords will recall that when we discussed a similar amendment in Committee, I confirmed that any application for naturalisation received by the UKBA before the earned citizenship provisions are implemented, and which remains undecided at point, will be considered under existing arrangements set out in the British Nationality Act 1981. To be clear, the earned citizenship clauses will not apply to those cases. We will set this out in the commencement order giving effect to Part 2 of the Bill. This means that primary legislation is not needed in this area so I hope noble Lords will agree that there is no need to discuss this part of the amendment further. However, I see that noble Lords seek assurances about those with limited leave to enter or remain who also have an application pending for indefinite leave to remain; those who submit an application for limited leave to remain within the 12-month period prior to commencement; and those with limited leave to remain who are in a category leading to ILR or who have an application pending for asylum/humanitarian protection or a human rights claim whose claim is subsequently granted.

I said in Committee that officials were examining what transitional arrangements will apply to those with ILR when earned citizenship becomes law, and I have written to the noble Lord, Lord Avebury, about that. I hope that he and other noble Lords who are interested in this have seen a copy of the letter and have had a chance to read what I have said about the transitional arrangements that we propose. I will, however, summarise the position. Migrants with a pending application for ILR that is submitted but not decided before the Immigration Rules are changed following commencement of the earned citizenship provisions will have their applications considered under the existing rules. This is also the case for those who have a pending human rights or humanitarian protection claim or who have applied for asylum.

Any migrant who already has ILR in the UK will be deemed to have permanent residence status for the purposes of the earned citizenship clauses. They will not need to make an application to be recognised as a permanent resident or pay any sort of fee, and they will continue to have full access to benefits and services, subject to the general eligibility criteria. Migrants with ILR, or those whose pending application for ILR is subsequently successful when the earned citizenship clauses in the Bill are commenced, will be able to apply to be naturalised under existing Section 6 of and Schedule 1 to the British Nationality Act 1981, provided that they apply within a set period after the clauses have been commenced. We have not yet confirmed this period, but it is likely to be for between 18 and 24 months after the clauses have commenced. Such a period is fair, given that the aim behind our proposals is to encourage more people who are here legally to become British citizens, as the noble Baroness, Lady Hanham, said.

We do not propose that the transitional arrangements should permit those who do not have ILR when the earned citizenship clauses in the Bill are commenced to be able to apply to be naturalised under existing Section 6 of and Schedule 1 to the British Nationality Act 1981 after the changes have taken effect. This means that when the provisions of the Bill come into force, all migrants with limited leave will have to progress through the earned citizenship architecture to obtain British citizenship or permanent residence.

The Government will undertake information campaigns between now and the implementation of the earned citizenship proposals to ensure that migrants are aware of the changes and their impact on them. These campaigns will make it clear that the earned citizenship clauses will not be commenced until the beginning of 2010 at the earliest.

The noble Lord, Lord Lester, referred to the JCHR’s ninth report of Session 2008-09, Legislative Scrutiny: Borders, Citizenship and Immigration Bill, which was published very recently. Indeed, the ink is almost still wet, and there has been time to give the report only a cursory glance. The Government will respond to the JCHR’s four major recommendations in due course. The noble Lord asked about retrospection. The Government are trying to encourage new and fundamental approaches to citizenship, and we continue to examine what transitional arrangements will apply. I can confirm, as I already have done, who will be allowed access without reference to the new clauses and who will not. We will therefore have to consider matters, but let me be clear; the consistent position is that a migrant’s only legitimate expectation is to be assessed under the rules in force at the time of their application. The question then is: when does that time clock start? In the light of the JCHR’s report and the comments of the noble Lord, Lord Lester, the sensible thing for us to do is to respond in writing, setting out more clearly the Government’s position. In the mean time, I hope that the amendment will be withdrawn.

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My Lords, on a matter of procedure, I realise that we are at a late stage in the Bill, as we are on Report, and that the JCHR’s report had to be published at great speed. Having read the report, the Government may be able to respond at Third Reading if amendments can be tabled then. I know the rules about Third Reading and how careful one must be not to expand it, but frankly it is the only opportunity that the House will have to deal with some of the issues in the report before the Bill becomes law. I say that now simply in the hope that if we cannot deal with the report in next week’s debates on Report, we may have to come back to some of these issues at Third Reading.

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My Lords, the noble Lord makes an important and helpful suggestion, and I think we should seek to make our response to the report available very quickly so that it can be considered. If we could return to it next week, it would be helpful to all concerned.

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My Lords, I thank the Minister again for his reply, although it was not very helpful. I am extremely grateful, too, for sight of the report that has just been issued. We understood as clearly as we could after the last sitting that the Government were going to allow those with indefinite leave to remain to move to the next stage without any transitional arrangements, and we included the two extra areas in our amendment to seek to have that established in the Bill. That is what the Minister had said.

We are less than happy with the Minister’s reply about those with limited leave to remain. We made it quite clear in our amendment that we were looking at those who are in the final stages of limited leave to remain before making their application. The report is extremely important, and it totally underlines what we have been saying: that it is inherently unfair to people who have started on a process to change it suddenly midway. For migrants on higher levels, this will be for the second time, and with a court case against them.

I am sure that the Minister’s written reply to the report will be very good, and I am sure that there will be an opportunity to discuss it further, but those in the latter stages of limited leave to remain should not be left in limbo any longer, not knowing what their process is. I therefore beg leave to test the opinion of the House.

Division 1

25 March 2009

Division on Amendment 23A

Content: 171
Not Content: 110

Amendment 23A agreed.

View Details

Clause 39: Application requirements: general

Amendment 24

Moved by

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24: Clause 39, page 29, line 19, after “has” insert “refugee status, humanitarian protection status,”

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My Lords, I am grateful to the noble Lord, Lord West of Spithead, for seeing me with his officials since Committee stage, for at least two written replies and for bringing forward several government amendments in this group. I will speak also to the three amendments in my name in this group.

As regards Amendment 24, I suggest that Clause 39(2)(c) is unclear and that subsection (11) is not sufficiently explicit. Amendment 24 is designed to assist the integration of genuine recognised refugees and those granted long-term humanitarian protection. Refugees should be helped to integrate. They should be mentioned in the Bill; that will provide practical help to those who have to practise and advise in these matters.

Amendment 31 is designed to ensure that time spent by refugees in Britain, prior to a determination of their claims, counts as part of the qualifying period for citizenship. The United Nations High Commissioner for Refugees does not want to see delayed decisions and the time taken over appeals postponing the grant of citizenship. This is most relevant to the so-called backlog cases where years go by with no decision being reached.

Amendment 37 is designed to assist the earliest possible integration into British society of refugees and protected persons. It also removes the requirement to take part in community activities. Refugees, by definition, have usually suffered and have lost their home countries. They have a specified and recognised status here and should not be expected to prove themselves like classes of migrants who are applying for citizenship.

My Amendment 41 covers bona fide refugees who have been accepted as such, who may, through force of circumstances, have had to enter the United Kingdom by illegal means, provided that they have declared themselves to the authorities as soon as possible after entry. My amendment will be helpful to practitioners because it includes the relevant article of the convention in the Bill. I should add that there has been a very small misprint in the text of Amendment 41. After the words “UN Convention on Refugees” the brackets should contain the figures 1951. I beg to move.

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My Lords, in supporting the general approach to all these amendments, perhaps I may draw attention to what the Joint Committee on Human Rights has written about this, so that it can be considered by the Minister and the Government. At paragraph 1.53 of our report, under the heading “Compatibility with Refugee Convention”, we first refer to introductory matters, including the fact that Article 34 of the refugee convention,

“requires that States ‘expedite naturalisation proceedings’”.

We pointed out that:

“The UNHCR has expressed its concern that the tighter requirements for naturalisation contained in the Bill make it more difficult in practice for refugees and those with humanitarian protection to qualify for naturalisation and may in fact operate to impair their integration … The Bill would require all refugees and those with humanitarian protection to pass a qualifying period of five years plus an additional probationary citizenship period of three years prior to qualification for naturalisation. The introduction of the probationary citizenship period would therefore increase the total period of time before refugees become eligible for citizenship to eight years. This could be reduced to six years if the person concerned can demonstrate that they have satisfied the active citizenship requirement, but that is also a requirement which refugees may find it difficult to fulfil because of their particular circumstances of having faced persecution or ill-treatment in the past”.

At paragraph 1.55 the report states:

“We are concerned that the effect of certain of the earned citizenship requirements in the Bill is to make it more difficult for refugees and those with humanitarian protection to qualify for naturalisation as a British citizen, contrary to Article 34 of the Refugee Convention. We welcome the fact that the Government appears to have acknowledged that these concerns are legitimate and is considering bringing forward its own amendments. We intend to scrutinise any Government amendments with a view to ensuring that adequate exceptions are made for those qualifying for citizenship through the protection route”.

I am now coming to the end. We continue:

“Article 31 of the Refugee Convention prohibits States from imposing penalties on refugees on account of their illegal entry or presence. The Bill makes it a requirement of naturalisation that an applicant must not, at any time in the qualifying period, have been in the UK in breach of immigration laws, which is widely defined. The UNHCR is concerned that penalisation for illegal entry may operate to prolong the period in which refugees or those with humanitarian protection will be able to apply for naturalisation. We agree with this concern … We recommend that the Bill be amended to ensure that penalisation for illegal entry does not affect the qualifying period for refugees and those with humanitarian protection”.

I hope that that is all helpful. I am sorry to have to do this in this way, but the report came in so late. I very much hope that the opposition Front Bench, if it comes to power, will recognise the value of this committee, which has become something of a very important addition to both Houses. It is excellent that one can have this debate straight off, with this report being brought to the Minister’s attention and time still for it to be properly considered. The speech made by the noble Lord, Lord Hylton, and his amendments are part of what I have been trying to put forward.

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My Lords, in supporting this amendment from these Benches, I should say that our whole reputation is in the balance. Over the years, we have prided ourselves on having a door that welcomes people who are in desperate situations. Often, the refugee is the most desperate of all. Two weeks ago, I spoke to a refugee who had spent four weeks in the back of a lorry travelling from Afghanistan. I know that they should not do that, but let us imagine the despair of people who are ready to put up with that sort of journey. We should remember too those who came in a refrigerated van and were found to have died on their journey when they reached Dover.

The situation can be desperate, which means that we must be people of realistic compassion who are ready to give such refugees an opportunity to walk the path of citizenship. I would expect the word “humanitarian” from the noble Lord, Lord Hylton. We still must be a people ready to welcome those who are not in circumstances that we, nor they, would desire. We on these Benches welcome this amendment.

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My Lords, I have looked at cols. 531-33 of the Official Report on 2 March. The Minister gave my noble friend and the noble Lord, Lord Clinton-Davis, and others the reassurance that the Government would,

“think about a further discretion to cover the time periods taken for the consideration of protection cases”.—[Official Report, 2/3/09; col. 532.]

If that is translated and turned into these government amendments, I am still unclear as to whether they accept the principle that all recognised refugees, and not just the gateway refugees, should not have to go through the hurdles of the qualifying period and active citizenship. I do not think that these amendments go that far. Amendments 28 to 30 and Amendments 33 and 34 merely provide for discretion. In exceptional circumstances, the period during which the claim was pending may count towards the qualifying period. I hope that the Government will reflect hard on these amendments, which I support, and perhaps move others in due course.

As to penalisation, covered by Amendment 41 to Clause 41, the Minister seemed to imply that any breach of immigration law would only become relevant during the period after an asylum seeker had achieved refugee status. If that is the case, it would be welcome. Many of us are arguing for more than that. We argue that the qualifying period for subsequently recognised refugees should begin at the point of their entry to the UK. Therefore, the Minister would have to give a further assurance that any breach of the law at the time of entry, when a refugee might have been forced to enter illegally—and we have heard countless examples of that—would have taken place before the qualifying period starting at that time. Could the Minister give that reassurance?

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My Lords, Amendment 32 is of the same mind as the amendment tabled by the noble Lord, Lord Hylton. We do not provide for those in the UK with outstanding applications under European Community law. On the other hand, as well as refugees, we deal with those granted leave to remain outside the rules, where the Secretary of State decides that there are exceptional reasons—that do not fall within the Immigration Rules—to grant leave to remain. We hope that the Government will include the period spent waiting for successful determination of all these claims as half of the qualifying period. That would be the only way to comply with recommendation 157 in the JCHR report, which has already been cited by my noble friend. I hope that we will get an answer on that this evening and that we will not have to wait for a written reply from the JCHR because, on the face of it, this is perfectly clear.

Our Amendment 52 is also in this group. It adds to Clause 46, dealing with the meaning of references to being in breach of the immigration laws. Proposed new subsections make it clear that, during a period of awaiting successful determination of a claim for asylum, or human rights protection, the applicant is not in breach of the immigration laws. One would have thought that this was obvious, considering that it had been determined that such a person had a legitimate reason for entering the UK. Section 11(2) of the NIA Act 2002 says that,

“reference to being ‘in breach of the immigration laws’”,

in the British Nationality Act applies to a person who,

“does not have leave to enter or remain”,

here. That applies to the refugee while he awaits the outcome of his claim. It is therefore necessary to have these subsections inserted in the definition. They will also make it possible for the waiting time to count towards a later citizenship application.

We faintly welcome the Government’s amendments, which allow for discretion to waive the requirement for a person to have qualifying immigration status throughout the qualifying period, where a person’s temporary leave had expired shortly before his or her application for probationary citizenship, or where the person’s probationary citizenship had expired before his or her application for citizenship itself. We also agree that the requirement should be waived for successful asylum seekers, but not only—as the Minister said in Committee—where there is an undue delay in determining a claim, and this delay is not attributable to the claimant.

There are still some 200,000 so-called legacy cases of people who have been in the system for several years. On the Government’s own assertion, those cases are not expected to be cleared until July 2011. The time taken to deal with many current cases is also profoundly unsatisfactory. At the end of 2008, there were 10,800 applications awaiting an initial decision, compared to 6,800 a year earlier, in spite of fewer cases arising in 2008. When decisions are finally reached, these are not reliable, as can be seen from the fact that one in four of the appeals determined in the last quarter of 2008 was successful. In those cases where the applicant’s case was judicially found to be valid, he ought not to be penalised and, at the very least, the time between refusal of the application and the determination of the appeal should count towards the qualifying period. The amendment says that the whole time spent awaiting determination of the claim should be treated as falling within that qualifying period.

Since the general aim of the Government’s naturalisation policy is to promote greater integration, as the noble Lord, Lord Brett, said in Committee, the logical and right solution would be to treat the whole of the time from first application to successful determination as part of the qualifying period. This, again, is referred to in the JCHR report as being part of the UNHCR’s convention, to which we are signatories. In the unlikely event of reaching the target of six months for the conclusion of new asylum claims by the end of 2011, it would still be perverse to make refugees escaping persecution wait an average of half a year longer than ordinary migrants to become citizens. We hope to persuade the Government to give the matter further consideration.

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My Lords, on the one hand one must be grateful to the Government for tabling some amendments in response to our discussions on these points. However, as the noble Earl, Lord Sandwich, has said, the amendments do not seem to go far enough. I remind the Minister that we are talking here about people to whom the terms “failed” or “bogus” are not applicable. We are talking about people whose cases have been accepted as legitimate. They have been accepted as refugees or in need of humanitarian protection and they are entitled, eventually, to become citizens. The UNHCR is very clear about what we need to do to comply with our international obligations on this matter. I very much hope that the Government will listen to what the UNHCR has been saying to those of us involved since this Bill came before us—and what it continues to say—about what we need to do to comply, which is to treat refugees as the international community expects and as, in the past, this country has always tried to do.

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My Lords, I will try to respond to all items in this group, including the government amendments. I will start with the JCHR recommendations, which we have had little time to study. I can advise noble Lords that our officials have corresponded recently with the UNHCR and sought to address the points that it raises. Importantly, the Government are clear that we do not believe that our proposed changes are incompatible with Article 34. Although there is nothing in current UK nationality law or our proposal that specifically facilitates the acquisition of nationality by refugees, the residence requirements are not unduly onerous for any applicant. It is possible for refugees to be naturalised. Any decisions not to naturalise are taken in good faith.

Only six years’ lawful residence will be required, or just three years if the applicant is married to a British citizen, ensuring that the active citizen condition is met in both cases. It is therefore possible for all refugees to be naturalised if they meet certain statutory criteria and these criteria are justifiable. Furthermore, we do not believe that, by not counting time spent in temporary admission for purposes of naturalisation, the UK is penalising refugees for illegal entry or breaching Article 31 of the 1951 convention. Nothing in the earned citizenship clauses of the Bill imposes criminal sanctions on refugees who enter the UK illegally.

It might be helpful if I explain that the existing requirement not to be in breach of immigration laws, as inserted by Clause 46, is concerned with a person holding the correct sort of status in the UK rather than with commission of offences. In future, as now, any commission of criminal offences will be taken into account in assessing whether an applicant has the separate requirement of good character on the date of the application for naturalisation in Schedule 1 to the BNA 1981. As noble Lords know, we have tabled amendments to ensure that the earned citizenship clauses provide a discretion to waive the requirement to have had a qualified immigration status for the whole of the qualifying period in relation to applications made under Section 6(1) and (2) of the British Nationality Act. Having this discretion will give the necessary flexibility to the system that we are creating. In the case of refugees, we would usually expect to exercise it where undue delay has occurred in determining an asylum application or where the delay was not attributable to the applicant. I will go into further detail as we go through the amendments.

The noble Lord, Lord Hylton, commented on his discussions with my noble friend Lord West. We gave an assurance that we would table amendments and we have done so. However, his Amendment 41 goes further than the Government’s intent and would allow refugees to count any time spent in the UK since entry, including time spent pending an asylum decision, towards the qualifying period for naturalisation. I would like to develop the point. No doubt noble Lords will have looked at the government amendments tabled in the name of my noble friend Lord West. They ensure that the discretion to waive the requirement for a qualifying immigration status for the whole of the qualifying period is included in the Bill, thus providing the necessary flexibility. I have described where it might be applied, which is where there is a question of undue delay.

As I explained in Committee, we do not feel that allowing those who are subsequently recognised as refugees to automatically count the time spent in the UK pending a decision on their asylum claim towards the qualifying period for naturalisation is the right approach. For example, if we provided an exemption on the face of the Bill specifically for refugees, this would have counterproductive results. First, if a person applied for asylum on arrival in the UK and subsequently absconded and then some months or even years later came to light and was recognised as a refugee, we would have to count the time during which he had absconded towards the qualifying period for naturalisation. It seems wrong to reward an abscondee in this way when others who comply with the process must complete the temporary residence and probationary citizenship stages. It would also go against our aim to increase compliance with the system. Similarly, if an individual failed to comply with the system, by not attending interviews, for example, we would not want that time to count automatically towards the qualifying period.

Another important point is that in asylum cases a decision is based on the prevailing circumstances at the time when the case is actually considered, in addition to taking into account the facts of the claim when it was originally made. For example, the fact that a person may be recognised as a refugee does not always mean that he was so from the start. Events in the country of origin, fresh evidence or fresh case law could mean that the person qualifies as a refugee only after the initial application was made. The amendment would mean that a person who may have had no basis to his claim at the time when it was made could nevertheless count that time pending his decision towards his qualifying period. UKBA is seeking to determine asylum claims as quickly as possible and has made considerable progress; the period of six months was mentioned. We do not consider that the time taken to resolve asylum applications represents a significant disadvantage in the majority of cases.

I reassert the Government’s full commitment to meeting their international obligations in respect of those fleeing persecution. However, we do not propose to go as far as permitting any time spent in detention, on temporary admission or on temporary release, or any time spent pending an application for leave to remain in connection with an asylum or human rights claim, to count towards the qualifying period for naturalisation. We will use discretion where this is appropriate.

Amendment 37 would amend the Bill so that the qualifying period for persons granted refugee status or humanitarian protection is fixed at five years. I must also resist this amendment. Under the present system—

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My Lords, I thank the Minister for allowing me to intervene. Will he explain what incentives are to be built in, under his approach, to encourage the machinery to deal with refugee claims more expeditiously? How is the Home Office going to be made to operate more quickly? How will having a broad discretion make the system work better, rather than lead to yet more arguments and perhaps more litigation and thus slow the whole thing down? In terms only of the efficiency of the machine, I do not understand from what the Minister has said how this is going to encourage officials to get on with it and how it will make the whole thing work better. The more discretion one gives, the more likely it is that there will be more arguments and in the end higher costs, to the detriment of the public interest.

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My Lords, the short and simple answer to the question put by the noble Lord is that the UKBA has set itself targets to resolve all fresh asylum claims within six months. Clearly, if a case such as the one mentioned by the noble Lord, Lord Avebury, carries on for 18 months through no fault of the applicant, that is a clear case where the exercise of discretion can be used for the purpose of resolving undue delay.

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My Lords, I am sorry to interrupt the noble Lord, but will he say something about how the discretion would be exercised, instead of saying how it would not? He has given two examples. One was the case where the person absconded before his claim was determined. He then resurfaced and was successful. The other was where the circumstances in the country of origin had changed so that the person became a refugee at some point during the currency of his application being determined. However, those are not normal cases. What we are talking about is the normal run of asylum cases where a person complies with all the rules that are imposed on him, but in the end he has to wait around for a year or 18 months. Is it not then reasonable and in compliance with the passage from the convention quoted by the JCHR for that time to be counted towards his legitimate stay in the country for the purpose of determining his claim?

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My Lords, it depends on how that period of time is defined and whether it is defined as the excess period beyond which it would be reasonable to expect the UKBA to have dealt with an application. We are looking at a target of six months, so, if it took 18 months, it is clear that something must have gone wrong. If it is unlikely that it was the fault of the applicant, this would be a case where it would be right to exercise discretion.

The question that arises is what we mean by “undue delay”. That is where guidance will be developed to deal with the circumstances where we should exercise the discretion. In broad terms, discretion will be exercised where undue delay has occurred, which would be a delay that extended significantly beyond the timescale applying to the majority of applicants. If we have a target of six months and we meet it for the vast majority, but for some reason some individuals encounter delays beyond that period, the balance of time beyond the normal period of six months would be the argument for using discretion to allow it to count.

Perhaps I may return to my response to the amendments. The noble Lord has asked me several questions and I should like a little time to think about them and return to them before the end of my remarks. As I said a moment ago, Amendment 37 would make the qualifying period a fixed one of five years. We shall also seek to resist this. Under the present grounds for refugee status or humanitarian protection, someone can qualify for citizenship after a minimum of six years. Our proposed provisions maintain this position and we do not consider that there are strong arguments for reducing the period for those on the protection route.

As has been said, we want refugees to follow the path to citizenship and fulfil the criteria of that path in the same way as other migrants do. We have designed the path so that it encourages migrants to integrate with their local communities. I know that noble Lords share my objective of improving the extent to which migrants integrate into our society. That must be equally true of refugee migrants as it is for those who arrive by other routes. Removing the requirement that refugees must meet the same criteria as other migrants to qualify for citizenship would do nothing to assist their integration, so I must respectfully resist this amendment.

Finally, Amendment 52 would ensure that persons with a pending application for leave to remain, pursuant to an asylum or human rights claim, are not treated as being in the UK in breach of the immigration laws where they go on to be granted leave to remain. The requirement not to be in breach is relevant only to those whose qualifying period has started and, as I said, in the case of those seeking protection the qualifying period will normally start only when they are granted leave on that basis. In those cases where we choose to exercise the new discretion—for a delay, or whatever—to count periods before the date of leave being granted towards the qualifying period, we will also apply discretion to waive the requirement not to be in breach, where that is a necessity.

I hope that the noble Lords, Lord Hylton and Lord Avebury, and the noble Baroness, Lady Miller, will accept that the amendments that we are putting forward are intended to meet the concerns that they have raised. Therefore, I hope that in moving those amendments we will be able to persuade the noble Lords and the noble Baroness not to press the other amendments.

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My Lords, the Minister has, no doubt, done a very good job in resisting my amendment, but I invite him to explain the precise effect of the five amendments that the Government have tabled.

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My Lords, as I explained in Committee, the Government sought to meet the concerns raised by the Liberal amendments put forward at that stage and, by increasing discretion, for example, to move towards meeting the point on undue delay that has been repeated today. Therefore, I believe that while there is no resistance in this House to the government amendments, there is some concern about the broader system that we are putting in place. There also seems to be some concern about discretion. However, as I said, guidance will be developed on that. In the mean time, I hope that the normal cases that the noble Lord, Lord Avebury, referred to would be those that we can deal with quite easily—if we are not talking about the exceptions—once we have a clear understanding of what delay we are talking about. We believe that such a delay would be beyond that normally associated with a swift determination of refugee status, which would be six months.

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My Lords, in answering that question from the noble Lord, Lord Hylton, is the Minister saying that the discretion in the Bill is unfettered but that guidance will be given that, while not legally binding, will somehow be taken into account? Is that the position? If the discretion is unfettered, that seems inappropriate. If the Minister is saying that there will be guidance that will, in some way, limit and define the discretion, that position is much more acceptable. I am not clear what he is saying on that.

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My Lords, I was saying that guidance will be developed; I thought that I was clear on that point, if nothing else. On the argument that exceptional cases do not make good examples and that the more normal application problem is that which the noble Lord outlined—namely, that of undue delay—the answer is: yes, there will be discretion, and guidance will be developed to meet those problems and to assist in a speedy resolution.

I return to the point made by the noble Lord, Lord Hylton. Government Amendment 30 will ensure that the earned citizenship clause in the Bill allows for discretion to waive the requirement to have the qualifying immigration status for the whole of the qualifying period. Having that discretion will give the flexibility that we believe the system that we are creating needs. In the case of refugees, we would expect to exercise that discretion where we have the undue delay factor, or others, so the guidance will be developed to give officials an understanding of what “undue delay” means and how to apply the discretion. I do not think that I can add anything else.

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My Lords, with regard to Amendment 24, I am extremely grateful to at least five of your Lordships, in all parts of the House, who spoke in its support. If this debate does one thing and speeds up the rate at which the Government deal with the huge backlog of asylum applications, that will be major progress. At the moment, the backlog far exceeds the annual number of new cases that the Government are so pleased to be dealing with within six months. I hope that we shall hear further explanation of the precise meaning of the government amendments. While I shall need to study the Government’s reply and to take further advice, I beg leave to withdraw Amendment 24.

Amendment 24 withdrawn.

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My Lords, as it is 7.26 pm, and both the Front Benches have now been going for some time and with some great effort, it might be appropriate if we were to take the break now.

Consideration on Report adjourned until not before 8.26 pm.