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Mr. Byrne:
I should like to put the mind of the hon. Member for Ashford (Damian Green) at rest. I am not sure whether they are ideas or proposals from Commissioner Frattini about the blue card scheme, but
we certainly have no intention of joining those proposals, and I suspect that we shall not be alone among the European member states in striking that position.
Let me pick up on the three points of substance that were raised in the debate. The first was an important point about whether destruction would effectively mean destruction. The answer is yes. Of course, that will be set out in slightly longer sentences when the regulations are introduced. As the House will know, those regulations will be subject to the affirmative resolution procedure, so I hope that there will be an opportunity for a longer debate on the matter. For the purposes of this afternoon, however, I hope that that underlining will be sufficient.
On the question of sharing information, the hon. Member for Ashford (Damian Green) tempts me. He knows that my background is in the technology business. I shall try not to detain the House for hours and hours—although I happily could—about the system architecture that we proposed in the strategic action plan published last December. In a nutshell, the system will effectively link together an existing Government database called CIS, which is a repository of biographical information, and a new database that will contain the biometric information. That will allow us to hard-wire a link between a single biographical record and a single biometric record. There are some pretty strong safeguards around duplication.
Stewart Hosie: We have already debated the question of access from a remote site to check the central database, once the eyes or the face of a person have been scanned where a transaction is taking place. Is the Minister suggesting that the two separate repositories will be hard-wired together, or will they be merged into a single repository to allow that checking to happen?
Mr. Byrne: Mr. Speaker, I know that you will be careful not to let me go back over the strategic action plan, which provided the answer to that question in 30 pages last December. However, I will happily send another copy of it to the hon. Gentleman by way of explanation, if I may.
The hon. Member for Somerton and Frome (Mr. Heath) made an important point, and I can give him some comfort, although I am not sure that I can wholly satisfy him. Proposed new paragraph (f) contains the phrase:
“for such other purposes (whether in connection with functions under an enactment or otherwise) as the regulations may specify.”
The Secretary of State already has common law powers relating to the way in which information may be shared with other parts of the Government, and they are subject to the safeguards set out in the Human Rights Act 1998 and the Data Protection Act 1998. This area is therefore not protection-free; there are some quite important protections already in place. The provision is designed to ensure that those common law powers are not diminished. The only comfort I can give the hon. Gentleman is to underline the point that it refers to functions
“under an enactment or otherwise”.
There is a functional specification in the list, which creates some boundaries, but the principal purpose of the measure is, in effect, to preserve the status quo—namely, the power that the Home Secretary already has to share information with others. I commend the Lords amendments to the House.
Lords amendments Nos. 9 to 1 6 agreed to.
Mr. Byrne: I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Speaker: With this, it will be convenient to discuss Lords amendment No. 18.
Mr. Byrne: These are technical amendments, for which I am grateful to the Delegated Powers and Regulatory Reform Committee. In the Bill as drafted, we sought to make some changes in the way that evidence was submitted once the points-based system was in place. In particular, we wanted to avoid the nonsense of having late evidence provided at the last minute. We sought to introduce the changes in the immigration rules, but the Delegated Powers and Regulatory Reform Committee made the helpful point that we were looking in the wrong place to introduce those rules. In fact, powers relating to rules about the presentation of evidence to the asylum and immigration tribunal should be exercised by the Lord Chancellor, not the Home Secretary. The amendment is thus designed to correct the legislation on that point. The key phrases in question will now be defined in AIT procedure rules made by the Lord Chancellor, not in immigration rules made by the Home Secretary. I commend the amendment to the House.
Damian Green: This group—and, indeed, the previous group—provides a welcome step forward in clarification. In respect of the previous group, a degree of parliamentary scrutiny can be provided. I have sat on many Public Bill Committees in which scrutiny is batted back and forth. It is always good when we get to the end of the procedure and Ministers admit that some degree of parliamentary scrutiny is quite useful and that it should apply beyond the original point where the Bill is passed and should also apply to regulations or, in this case, codes of practice that are introduced as a result of legislation.
My noble Friends in the other place were particularly keen for this power to be vested in the Lord Chancellor rather than the Home Secretary, which was also recommended by the Delegated Powers and Regulatory Reform Committee. I am glad that the Government have acceded to this change. As the Minister says, it is a technical change, but it improves this small corner of the Bill.
Lords amendment No. 18 agreed to.
Lords a mendment proposed: No. 19.
“Children
(1) The Secretary of State shall issue a code of practice designed to ensure that in exercising functions in the United Kingdom the Border and Immigration Agency takes appropriate steps to ensure that while children are in the United Kingdom they are safe from harm.
(2) The Agency shall—
(a) have regard to the code in the exercise of its functions, and
(b) take appropriate steps to ensure that persons with whom it makes arrangements for the provision of services have regard to the code.
(3) The code shall come into force in accordance with provision made by order of the Secretary of State; and an order—
(a) shall be made by statutory instrument, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(4) The Secretary of State shall from time to time review and, if necessary, revise the code; and subsection (3) applies to a revision as to the original code.
(5) In this section—
(a) “the Border and Immigration Agency” means—
(i) immigration officers, and
(ii) other officials of the Secretary of State, and the Secretary of State, in respect of functions relating to immigration, asylum or nationality, and
(b) “child” means an individual who is less than 18 years old.”
Mr. Byrne: I beg to move, That this House agrees with the Lords in the said amendment.
Damian Green: I beg to move amendment (a) to the Lords amendment, in line 10, at end insert—
‘(c) record in documentation when staff and the Agency depart from the code
and the reasons for such departure, and
(d) inform the Office of the Children’s Commissioner in the relevant constituent part of the United Kingdom on each occasion when it has departed from the code.’.
Mr. Speaker: With this, it will be convenient to discuss amendment (b) to the Lords amendment, in line 25, at end add—
‘(6) (a) This section shall come into effect six months after the day on which this Act is passed.
(b) During the time specified in subsection (6)(a) the Secretary of State shall consult such organisations as he considers appropriate on the contents of the code.’.
Damian Green: We have some difficulties with amendment No. 19, which their lordships have proposed. That is why my hon. Friend the Member for Reigate (Mr. Blunt) and I have tabled amendments (a) and (b), which deal with the treatment of children. I am sure that all those who participated in debates on the Bill throughout its various stages will agree that the treatment of children has been the most sensitive and difficult issue, and the one on which, quite rightly, we have spent most time.
The Government’s response to the widespread criticism of their original proposals, not just from Opposition parties, but from the many bodies that devote their lives to helping children in vulnerable
positions, is amendment No. 19 and the decision to issue a code of practice, which according to the Bill seeks to ensure that the Border and Immigration Agency takes steps
“to ensure that while children are in the United Kingdom they are safe from harm.”
The Minister will be aware that many of the groups in the Refugee Children’s Consortium regard that as inadequate because it simply is not good enough in terms of the duties and responsibilities that any Government have towards children in this country. The Opposition also believe that it is inadequate if we are to fulfil that important purpose, hence amendments (a) and (b), which would provide extra protection, in as much as we can influence the Bill.
The key is what duties should be imposed on the BIA when it comes into contact with children, as it sadly frequently does. Our original argument in an earlier debate concentrated on section 11 of the Children Act 2004, which imposes on public bodies a greater duty of care for children in their hands than the Government are prepared to accept in the Bill. Ministers in both Houses argued consistently that if they did that, it would be impossible for immigration officers to do their job properly. Instead, we now have the code of practice, which does not incorporate the section 11 duty to promote the welfare of children. That places a weaker duty on Government agencies than the duty that relates to indigenous children in England and Wales. The Government are not conferring any explicit statutory safeguarding duty for the BIA in the Bill. Although the amendment makes the Bill better, I do not, to quote the hon. Member for Somerton and Frome (Mr. Heath), wish to be churlish, but it is still not good enough.
The Government have argued consistently that any attempt to impose section 11 would restrict the primary function of the immigration service. Indeed, a Minister said that any such duty would
“severely compromise our ability to maintain an effective asylum system and strong immigration control”. —[ Official Report, House of Lords, 17 June 2004; Vol. 662, c. 996.]
I imagine that the Minister for Borders and Immigration will respond that way again today.
That assertion, however, has been tested during the Bill’s passage through both Houses and has been found wanting. No one disputes that the primary function of the immigration service is to ensure effective immigration control. Indeed, we have made many proposals that would improve the effectiveness of that control. However, other Government agencies also have a different primary function and they are still included in the duty under section 11. That does not appear to have had a negative impact on their performance. The Minister will be well aware that the police have a similar duty. I have never heard Ministers argue that the police cannot exercise their proper central functions while having regard to the constraint of section 11. The police, much more than immigration officers, must take control of situations daily where the immediate welfare of a child, who may well be committing an act of violence, may be compromised. That immigration officers cannot fulfil their duties while obeying the constraints of section 11 is one of the Government’s weaker arguments.
4.30 pm
The specific duty of care is not contradictory to the primary function; it simply qualifies the manner in which that primary function is exercised. The explanatory notes to the Act state that the duty is intended to ensure that agencies are conscious of the need to safeguard children and to promote their welfare in the course of exercising their normal functions. That is a key witness in the Government’s argument. The Minister will be aware that the Refugee Children’s Consortium has taken legal advice, which suggests that section 11 would not prevent the Home Secretary from implementing the removal directions for a child or for his or her family and would at most affect the manner in which the removal occurred.
The Minister will be aware that no one on this side of the House would wish to compromise the ability of the immigration service to perform acts such as the removal of those who should not be in this country, but unless the Minister can produce alternative and contradictory legal advice, Ministers ought to take some comfort that they could proceed in the manner that they have consistently rejected throughout the Bill’s passage. I am sure that the Bill should be enhancing child safety and the Government recognised that by tabling their own amendment and by producing the code of practice, which is now before the House. It is a matter of great regret that Ministers have not taken the next step forward and agreed to incorporate section 11.
On the code of practice, which is specifically mentioned in the amendment, the Minister will be aware of controversy in the other place when the code was introduced, simply because it appeared to be placed in the Library about 20 minutes before their lordships were due to debate it. A number of my hon. and noble Friends said that that was shoddy and, frankly, not the way in which they should be treated. I have a degree of sympathy with that.
At least we in this House have had time to read the code of practice, which is still in draft form, so there is still a chance to influence it. We are concerned that the code of practice does not reflect the full spirit of section 11 and I seek to obtain further assurances from the Minister. He will know that amendment (a) concerns the recording of information about when the BIA or its contractors has departed from the code of practice. We believe that recording is essential to monitor the implementation of the code and, in particular, to contribute to the culture change in the BIA that the Minister has consistently said he wants to see.
I do not suppose that anyone wants the procedure to be long and bureaucratic, but one thing it must be is transparent, which is why we have said that the information should be made available to the Office of the Children’s Commissioner. It is also vital that this requirement is rolled out across the whole of the BIA as part of its normal training programme and not just to those areas where children are dealt with most frequently or where a breach is most likely to occur.
Stewart Hosie:
I have a lot of sympathy with the points being made and I understand the requirement to record breaches in the code, but I have a question on the reference to the OCC in the second part of amendment
(a). I am not convinced that that is the best place for this work to be done. If the breach of the code relates to health, education or a justice matter, for example, would it not be better in Scotland for that to be reported to the relevant Cabinet Secretary or to the local authority, the education department or the local health board? I am trying to understand the logic of why the OCC should be involved in this matter after the recording has, correctly, been done by the agency itself.
Damian Green: I am grateful for the hon. Gentleman’s qualified support. The reason for choosing the OCC in the relevant constituent part of the UK—a point I hope he would welcome—is that that office will have as its first concern the welfare of children. It will always be open to the OCC to refer matters to other agencies if their involvement is required, but to try to specify a long list of potential agencies would give rise to a less elegant amendment. The principal point is the need for transparency. If breaches occur, somebody must be responsible for having them reported, and they must be somebody that this House and everyone involved can be reasonably certain will take effective action. I have confidence in the OCC to do that. As it is the best body to go to, this is the most effective way of protecting the interests of children—and if the OCC were not an effective way of protecting the interests of children, we should all be worried because that is what it is for.
The second assurance I seek from the Minister is in response to something said by his noble Friend Lord Bassam on Third Reading. There was a discussion about whether the code could be applied retrospectively to existing contracts. Lord Bassam was not particularly precise on that. He said that
“the advice that we have received is that it can be applied to existing contracts through the notice of change procedures already in place. We intend to ensure that the Border and Immigration Agency has a system of monitoring contractors’ performance by measuring them against a set of standards devised for the specific activities that they carry out for the agency.”—[ Official Report, House of Lords, 23 October 2007; Vol. 695, c. 1002.]
He did not state, however, whether all existing contracts would have the code of practice applied through the notice of change procedures. He simply said that it could be done. I would be grateful if the Minister could clarify that—I hope that he makes it clear that the code of practice will be applied in all such cases, and not just that it might be applied.
Amendment (b) has been tabled simply in the hope—particularly in light of what happened in the other place—that everyone involved has sufficient time to agree the code. As we are taking half a step forward when we should be taking a full step forward, we must ensure that the code is supported by all who have the welfare of children at heart and that it is an effective code of practice.
I recommend my amendments to the Minister and the House.
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