Motion on Amendments 1 to 8
My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments 1 to 8. We have listened to the debate, both here and in the other place, and have amended the Bill in order to assure the House on some of the key areas of disagreement. I am also assured that the Bill is better for this.
Before I introduce group 1, which relates to Part 1 of the Bill, I would like to echo the theme of consensus that has accompanied the Bill both in this House and in the other place. The Government have put on the face of the Bill transitional arrangements on earned citizenship, as requested by this House. They have also brought forward amendments on nationality law and trafficking, having sought agreements with the opposition parties, and proposed a new clause on judicial review in order to meet the concerns expressed in this House. There has been one issue—the common travel area—on which we have not been able to gain the House’s consensus, which is unfortunate against a background of great agreement both here and in the other place. Indeed, the chair of the Home Affairs Select Committee, the right honourable Keith Vaz, described the Third Reading debate in another place as a wonderful consensus. I hope, of course, that we can continue that in this House today.
The amendments on Part 1 that the Government proposed in the other place were a result both of listening to the debate that took place in this place about the definition of customs functions and of internal discussion. Clause 1 enables the Secretary of State to exercise the function of the Commissioners of Customs and Excise concurrently with them in relation to general customs matters. The term “general customs matters” may draw in certain functions already exercisable by the Secretary of State. There was therefore a need to ensure that the other provisions in the Bill—such as the information provisions in Clauses 14 to 20—apply only to the functions of the commissioners that the Secretary of State will be able to exercise under the Bill. Further, the changes made in the other place make it clear that these general customs functions include functions under Community law. The amendments also ensure that adjustments are capable of being made by order under Clause 2 to exclude or include, as appropriate, particular functions from the definition of “general functions of customs”.
Amendments 1 and 2 to Clause 1 have clarified the meaning for the purposes of Part 1 of the Bill of the general customs functions that will be exercisable by the Secretary of State and by general customs officials. Amendment 3 is related to Amendments 1 and 2 and ensures that particular functions can be included or excluded from the definition of general customs functions as appropriate. Amendment 4 reflects the new definition of a general customs function in Clause 1, while Amendments 6, 7 and 8 are consequential on the new definition of a customs revenue function in Clause 7. Taken together with Amendment 5, which clarifies the customs revenue functions under the Bill, they ensure that the information protection regime established in Part 1 applies to all relevant functions, including those under Community law.
Amendments 11 and 14 are also related. Amendment 11 clarifies the scope of Clause 26, which provides for the making of transfer schemes by HM Revenue and Customs. Amendment 14 defines the new term “Community law” using Clauses 1 and 7. Amendment 9 will insert a new Clause 25, the original of which will be removed by Amendment 10. It will create a revised definition of a short-term holding facility in the new clause. This will allow such facilities to be used either solely for administrative immigration detainees or for a mix of such detainees and persons detained under other powers.
Amendment 25 makes a necessary change to the schedule consequential on Amendments 9 and 10. Amendments 12 and 13 to Clause 28 are technical amendments to meet the stated policy intention, namely to allow the independent chief inspector to scrutinise the full range of UKBA functions, including whether the Secretary of State and the Director of Border Revenue are exercising their customs functions appropriately. I beg to move.
In the unavoidable absence of my noble friend Lady Hanham, I hope that the noble Lord will not object if I briefly comment on these amendments. We accept that these amendments, which the Government made in another place, clarify the extent of the customs functions that may be exercised by the Secretary of State and the Director of Border Revenue. This, as the noble Lord will remember, was the subject of much debate in this House earlier this year, and these amendments appear to go some way towards making sure that the remit of the UK Border Agency in respect of the exercise of its new customs functions is clear. However, we on this side believe that there is still not enough coherence between the many agencies that currently operate at our borders. The Government appear to be inching towards where it should be—that is, recognising that we need a unified border police force. At this stage, however, I do not wish to reopen debates that we had at another stage. I limit my remarks merely to accepting this group of clarifying amendments.
My Lords, it might be of assistance to the House if I suggest the formality of dealing with Amendments 1 to 8 en bloc. I will then call Amendment 9, which I assume the Minister will move formally, and then call Amendment 9A to give the noble Lord the opportunity to speak specifically to that amendment. Did the noble Lord wish to speak to Amendments 1 to 8?
Motion on Amendments 1 to 8 agreed.
Motion on Amendment 9
9: Insert the following new Clause—
“Short-term holding facilitiesIn section 147 of the Immigration and Asylum Act 1999 (c. 33) (removal centres and detained persons: interpretation), in the definition of “short-term holding facility”—
(a) after “used” insert “—(a)”, and(b) at the end insert “, or(b) for the detention of—(i) detained persons for a period of not more than seven days or for such other period as may be prescribed, and(ii) persons other than detained persons for any period.””
Amendment to the Motion
9A: Line 12, leave out “any period” and insert “not longer than six hours”
My Lords, I think that we are on the right track now, even though, as we believe, there are serious defects in Amendment 9. The Government proposed to scrap very late in the day the amended definition of “short-term holding facilities” that they had introduced in the Lords with the new clause now before us in Amendment 9. The Minister explained that he and the UK Border Agency had belatedly realised that the original clause would have redesignated immigration and removal centres, and some prisons and police cells, as short-term holding facilities—something that ILPA had been pointing out to them right from the moment that their Amendment 34 was first tabled.
Section 147 of the Immigration and Asylum Act 1999, as amended, would now define “short-term holding facilities” as,
“a place used,
(a) solely for the detention of detained persons for a period of not more than seven days or for such other period as may be prescribed”,
“(b) for the detention of—
(i) detained persons for a period of not more than seven days or for such other period as may be prescribed, and
(ii) persons other than detained persons for any period”.
Unfortunately, this new clause does not solve the problem. The definition now includes any police station or prison where a mixture of very different types of person could be held and, in the case of the existing facilities, it would allow non-immigration detainees to be held there virtually indefinitely.
The UKBA accepts that, technically, prisons and police cells will be within the definition. However, can the rules on short-term holding facilities apply in these places? Under the Government’s amendment, a person may be held in a short-term holding facility under any detaining power exercisable by any agency of the state and, if he is not an immigration detainee, for any length of time.
Short-term holding facilities are manifestly unsuitable for that. It would be harmful to the welfare of all that are held in such facilities if they were to be used in this way. We are struggling to get this right after several attempts, because we have been trying to encompass a whole range of detention facilities, where different classes of persons are held for a variety of purposes, in one definition. The immigration Acts confer powers on immigration officers to detain individuals for short periods but, as Mr Woolas, the Minister, said in another place:
“At present, short-term holding facilities may be used to hold only individuals who have been detained for immigration purposes under UKBA’s administrative powers of detention, and those who have been detained under section 2 of the UK Borders Act 2007, pending the arrival of a police officer”.—[Official Report, Commons, 14/7/09; col. 179.]
The Customs and Excise Management Act 1979 confers arrest powers on customs officials who may also need to detain persons for short periods while awaiting the arrival of a police officer. We agree that it is a sensible use of these facilities to allow them to be used by HMRC to detain people for up to six hours, or longer in accordance with the PACE clock where they have been designated for PACE.
Otherwise, Section 2 of the UK Borders Act limits the period of detention to three hours, pending the arrival of a police officer, while HMRC officials’ powers are limited to six hours in custody suites or HMRC offices before the suspect has to be transferred to a police station, where, of course, the PACE codes apply, as the noble Lord, Lord West, helpfully explained in his letter of 7 April. We think that it would have been correct legally and in practice to distinguish between, on the one hand, the places where these people can be held, together with persons arriving in the UK—while consideration is being given to their admission—and persons being removed from the UK who are awaiting a flight, and, on the other, places where people need to be held for longer periods under different provisions of the immigration or customs Acts, such as Schedules 2 and 3 to the 1971 Act, which allow detainees to be held for up to five days to examine or remove in places specified in the Immigration (Places of Detention) Direction 2009.
At this late stage, we will obviously not come up with a viable set of definitions that would distinguish between the classes of detainees and the places where they may be detained. However, we would like an undertaking that the power to detain people, other than detainees, at the existing short-term holding facilities will not be exercised until the Secretary of State has consulted the Children’s Commissioner, the Chief Inspector of Prisons and the independent monitoring boards, which have been severely critical of the suitability of the facilities at Heathrow and Gatwick, even for the limited purposes to which they are being applied at the moment.
Since the statutory instrument establishing the short-term holding facilities rules has not yet seen the light of day, presumably the Government will not implement this clause when it comes into effect, technically on Royal Assent. We would like the Minister to confirm that and to assure us that the powers will not be used in this way until the relevant statutory instrument has been passed by both Houses of Parliament. We understand that the SI will say that the rules do not apply to prisons or police stations, which avoids the problem of conflict between these rules and those already applying in prisons and police stations. That means that the scheme established by Parliament in the 1999 Act for regulating removal centres and short-term holding facilities would no longer apply, or would apply only in part, to some of the places designated.
The Bill was intended to be an interim step towards simplification of the law on immigration, but this clause, like much of the rest of the Bill, makes for greater complexity by designating places as short-term holding facilities despite the intention that they are not to be treated as such. We have retabled the amendment that was tabled by my honourable friends in another place on Report. This would ensure that detention in the short-term holding facilities under HMRC and court powers could not exceed a maximum of six hours. The questions asked by the noble Baroness, Lady Hanham, about the grotesquely inadequate facilities at Heathrow—highlighted as recently as April by the independent monitoring board—illustrate the dangers of allowing longer periods of detention in places that have no sleeping and woefully inadequate washing and toilet facilities. It is all very well for the Minister to say that the UKBA has an action plan for remedying these deficiencies, but it is dependent on BAA to provide the premises and equipment. That is bound to take some time, while the powers that we are being asked to confer on the Government come into effect immediately. I hope that we have the support of the Conservative Benches in a matter that has so exercised the noble Baroness, Lady Hanham. I beg to move.
My Lords, before the noble Lord responds—although I would like to hear his response—I had better quickly deal with the concerns raised by the noble Lord, Lord Avebury, in his Amendment 9A, which would limit the length of time for which persons who fall outside the strict definition of “detained persons” may be held.
By mixing up the uses to which short-term holding facilities—in other words, where different classes of person are held in the same facilities—can be put, the rules have a potential to cause confusion. However, we on these Benches see the case for flexibility in allowing holding facilities to be used to hold different types of person when the need arises. What matters in all the different cases is that staff at the holding facilities should be clear about what rules apply to which detainees. It seems now to us that the best way to do that is to set it out in rules in an easy-to-understand format, so that the rights and protections afforded by law to individuals who are being held are not breached accidentally. It is probably easier to do that through secondary legislation and codes of practice than by placing such provisions in the Bill.
I assure the Minister that we will be firm in holding the Government and their agents to adhering to any codes of practice. However, for those reasons, we cannot at this stage offer support to the noble Lord, Lord Avebury.
My Lords, I appreciate the concern of the noble Lord, Lord Avebury, in tabling this amendment and I should be grateful if he would let me explain why I cannot accept it, although I appreciate many of the points that he raised. I hope that I can give assurances and comfort that will allow him to withdraw the amendment.
The amendment would restrict to six hours the period of detention in a short-term holding facility of persons other than administrative immigration detainees. As the noble Lord said, the amendment was tabled at Report, when we made it clear why we could not accept it. The wording of the second limb of the new definition of a STHF may look at first sight to be broader than it will be in practice. Let me explain.
The only people whom we want to hold in STHFs, in addition to administrative immigration detainees, are those who have been arrested in connection with an immigration or customs offence. These people are subject to the protections of PACE. The only reason why we are tinkering with the established definition of a STHF in the 1999 Act is because that Act refers solely to administrative detention under immigration legislation. As we bring customs functions into the Border Agency, we want to ensure that arrests under immigration and customs legislation can also be caught, to ensure that the facilities of the Border Agency with immigration and customs functions can be used flexibly and efficiently to house all its clientele.
We should not be misled by the phrase “for any period”. This is not an open power to detain anyone indefinitely—far from it. Under PACE, the time limit is six hours, unless the facility has been specifically designated under PACE as a place where people may be held for longer. However, any such designation, and any detention in an STHF with that designation, will be subject to all the procedures and protections that PACE requires when detaining for more than six hours.
Our proposed revision to the definition of a short-term holding facility would have no effect whatever on the relevant time limits that would apply to a person’s detention or custody in those facilities, including those that apply to an arrested person whose detention is regulated by the provisions of PACE. We do not need to set a time limit because PACE already provides all the necessary limits in criminal cases. In accordance with the provision that we are making elsewhere in Part 1, where an arrested person is detained in a short-term holding facility, appropriate obligations and safeguards in PACE, or the equivalent order in Northern Ireland, will continue to apply.
Under the proposals in the Bill, individuals who have been arrested on suspicion of committing an offence, whether immigration or customs, may be detained for up to six hours in a short-term holding facility, or where such a facility has been designated for the purposes of PACE or the PACE (Northern Ireland) Order as a place of detention for longer than six hours, in accordance with the time limits prescribed by PACE, which could clock up to a maximum of 96 hours. There is, therefore, no need to specify a time limit in the definition itself.
I emphasise again that in all cases there will be no change to the relevant powers of arrest and detention, no change to the statutory protections that would apply to individuals held in a short-term holding facility and no change to the relevant statutory time limits that apply at present. To turn that around, I reassure noble Lords that the revised definition of a short-term holding facility does not in any way create new powers of arrest, detention or custody. It simply allows for the possibility of such facilities being used in a more flexible and efficient way to support the work of the UK Border Agency and any joint operations carried out with HMRC.
The noble Lord asked a number of questions. He asked whether the regulation would be the subject of a statutory instrument. It will. The rules for short-term holding facilities will be brought forward in the next few months. They will set out the standards and protection that will apply to immigration detainees in police cells and prisons and they will provide the reassurance that I have given that PACE will apply if people are detained in police stations or prisons. In broad terms, they will reflect the framework of those locations, modified as appropriate to reflect the non-criminal nature of immigration detention.
The noble Lord asked when this will come into effect. It will come into effect at Royal Assent. It is not our intention to delay its practical application, but I give an assurance that it will be applied in a way that will be consistent with the statutory instrument that will be introduced in the next few months.
The noble Lord asked a further question on consultation. I can give the assurance that we will consult the organisations that he named, including the Children’s Commissioner and appropriate NGOs. I hope that, on the basis of this explanation, the noble Lord will withdraw his amendment.
My Lords, I appreciate the care with which the Minister responded to the questions that I asked. In particular, I am grateful for the Government’s assurance that people will not be held in short-term holding facilities for longer than six hours, except where the PACE codes permit. I am particularly concerned about the use of short-term holding facilities at Heathrow and Gatwick airports, about which very serious criticisms have been made by the independent monitoring boards—to which attention has been drawn repeatedly by the noble Baroness, Lady Hanham, in a series of Written Questions—about the adequacy of the facilities, even for detention for short periods of six hours, for which they are supposed to be used now. If they are now going to be used, under this definition, for detentions under PACE provisions that allow a 96-hour contingency, they are totally unsuitable for the purpose.
The Minister in the Commons gave an assurance that there was an action plan to upgrade the facilities in accordance with the recommendations of the independent monitoring board. However, that will depend on the good will of the British Airports Authority and its ability to provide the capital and resources for the extension of the facilities. It would still be wrong to allow persons to be detained in facilities that are not suitable even for overnight accommodation, because they lack bedding, a toilet or adequate washing facilities.
However, as we are not going to get the support of the Conservatives for the amendment, there is no point in pressing it to a Division. We will keep a close eye on how these facilities are used and we hope that the bodies that I mentioned, including the Children’s Commissioner, the Chief Inspector of Prisons and the independent monitoring boards, will also ensure that unsuitable places are not used for keeping people for as long as the PACE code allows until the upgrading promised in the action plan has been accomplished. In the mean time, I beg leave to withdraw the amendment.
Motion on Amendment 9 agreed.
Motion on Amendments 10 to 14
Motion on Amendments 10 to 14 agreed.
Motion on Amendment 15
Motion on Amendment 15 agreed.
Motion on Amendment 16
My Lords, we very much welcome the Government’s acceptance in the other place last week of the arguments put forward both in this House and there about the great benefits of the common travel area to the United Kingdom, and Northern Ireland in particular. We are pleased that the Government will not press ahead with their plans to introduce immigration checks for those travelling between the Republic of Ireland and Great Britain and we thank them for listening to the concerns of this House and the other place.
However, I have one question for the Minister. Can he confirm that the Government will not go ahead with their proposed ad hoc checks on the border between Northern Ireland and the Republic? As discussed in Committee and on Report, concerns have been expressed in Northern Ireland that there could be a danger of racial profiling for people who are stopped, because they would need to satisfy the requirement of proving their identity in such a way that might well lead to ad hoc identity checks. We would very much welcome an assurance from the Government that such checks are now not possible and that they will not take place.
My Lords, I explained in moving the first group of amendments that unfortunately consensus has not been reached on the common travel area. Although the Government have indeed removed the proposal from the Bill concerning a common travel area, we think that it is still an area of concern in terms of security against terrorism and serious crime. However, the Government recognise the will of the House and therefore have withdrawn that part of the Bill.
We are of course concerned that both political and practical considerations mean that fixed or routine controls on the land border are not a viable option. However, that does not mean that we should not have the power under Section 10 of the 1971 Act to make an Order in Council provision, should it prove necessary, to deal with those who arrive by sea or air. We are considering ways to take forward the deletion of the CTA clause from the Bill and we believe that we should restore the status quo under the 1971 Act while this consideration takes place. The Minister in another place made it clear on Tuesday—reported at col. 238 of Hansard—that the Government still believe that the CTA amendments are needed. Pursuing such amendments would require new proposals to be brought forward to Parliament at a later date, but no decision has been taken as to when or in what form such proposals will be made. There will be no new immigration checks at the land border at this stage.
Motion on Amendment 16 agreed.
Motion on Amendments 17 to 19
My Lords, the Government have made considerable concessions in this area. Your Lordships will recall that we were united across parties, and Lord Kingsland, in particular, was very forceful on the subject of the transfer of judicial reviews to the new tribunal system. However, the Minister has now introduced a new clause, which means that no immigration or nationality law judicial review will be able to be transferred to the upper tribunal, except those which challenge a decision by the Secretary of State not to treat further submissions as a fresh asylum or human rights claim.
There has been compromise on all sides in reaching the position that we now have with the government amendments. We have accepted that the issue of fresh claims needs to be dealt with speedily, as the judiciary have consistently argued, and the Government have accepted the need to come back with primary legislation in order to transfer further classes of cases into the new tribunal system. Therefore, we welcome the Government’s amendments.
My Lords, as the noble Lord has just explained, this amendment goes some way to meeting the concerns held by Lord Kingsland and me on Report. It is extremely complicated, but the problem was the omission of condition 4 as a condition which had to be met before judicial review cases could be transferred from the High Court to the new tribunal. Now, new condition 5 has been inserted in much less strict terms than the old condition 4. As I understand it—I hope I am right—if condition 5 is satisfied, judicial review applications must be transferred, but if it is not, then it is up to the discretion of the High Court judges whether an application is transferred. I hope that the Minister might be able to confirm that my understanding is correct.
My Lords, the noble Lord, Lord Thomas, said that the Government have made considerable concessions to the united opposition on this matter. I think the noble and learned Lord, Lord Lloyd, said much the same. I was going to use slightly more robust words and say that it looked to me like a fairly complete climbdown by the Government, for which we are very grateful. As the noble Lord will be aware, Lord Kingsland was very rightly exercised by the Government reneging on a commitment given to this House some time earlier by the noble Baroness, Lady Ashton, that more transfers of judicial functions from the High Court to the tribunal would not be made without Parliament having a proper say. By accepting that no more transfers can be made without primary legislation, we believe that the Government are simply making good their own promise. Therefore, I welcome these amendments which the Government have brought forward.
My Lords, I am slightly shocked. The noble Lord suggests that there has been a total climbdown by the Government. The Government have listened carefully to the wise words of noble Lords. I feel slightly hurt at being castigated when the Government have listened to the good sense of noble Lords and have moved considerably to meet them. I am genuinely very grateful, not for the combined opposition, but for the great co-operation we have had, none greater than from the late lamented Lord Kingsland, who made a great effort to meet the Government and to help us all to arrive at something which your Lordships could accept. The situation is not quite as the noble and learned Lord, Lord Lloyd of Berwick, understands it. My brief tells me that only fresh claims must be transferred; no other judicial reviews can be transferred at all.
Motion on Amendments 17 to 19 agreed.
Motion on Amendments 20 to 23
Motion on Amendments 20 to 23 agreed.
Motion on Amendment 24
Motion on Amendment 24 agreed.
Motion on Amendment 25
Motion on Amendment 25 agreed.