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Session 2006 - 07 Publications on the internet General Committee Debates UK Border |
UK Borders Bill |
The Committee consisted of the following Members:Emily
Commander, Committee
Clerk
attended the Committee
Public Bill CommitteeTuesday 6 March 2007
(Morning)
[Mr. Eric Illsley in the Chair]UK Borders BillFurther written evidence to be reported to the HouseUKB 11 Joseph Rowntree
Charitable Foundation
UKB 12
Immigration Law Practitioners Association -
Supplementary
UKB 13 Mayor of
London
UKB 14 Refugee
Council
UKB 15 Still Human Still
Here
10.30
am
The
Chairman: Before we begin, I have a few preliminary announcements.
First, hon. Members may remove their jackets if they wish. Please will
all Members ensure that mobile phones, pagers and other electronic
devices are turned off or switched to silent mode during our
proceedings? I remind the Committee that there is a money resolution in
connection with this Bill, copies of which are available in the room.
Last week, the Committee sat to take oral evidence, but we are now back
on the more familiar territory of clause-by-clause
scrutiny.
Clause 1Designated
immigration
officers
Damian
Green (Ashford) (Con): I beg to move amendment No. 35, in
clause 1, page 1, line 11, at end
add
(4) The Secretary of
State shall, by regulation, make provision for the regular inspection
of immigration officers designated under this
section..
The
Chairman:
With this it will be convenient to discuss
amendment No. 36, in
clause 1, page 1, line 10, after
period, insert of not less than six
months.
Damian
Green:
I feel compelled to re-welcome you to the Chair,
Mr. Illsley, as we return to a comfortably old-fashioned way
of scrutiny after last weeks exciting innovation. I am not
being satirical; it is an extremely good innovation, for which I am
happy to commend the Leader of the House. Some of my remarks on these
amendments arise from the evidence that we heard. It would be extremely
useful to show that taking witness evidence helps us to have better
debates during the scrutiny stage of the Bill.
Both the amendments are to do
with ensuring that immigration officers, who will have new powers under
the clause, are aided in doing their new jobs correctly, are properly
trained and have the experience and skills to meet the new challenges
that the Government are
putting to them. Amendment No. 36 would allow the Secretary of State to
designate immigration officers for the purposes of detaining people
under clause 2 for a minimum specified period of six months. That would
ensure that the designation could not be made for a short period, which
would make the officers less able to do the job. Amendment No. 35 would
require the Secretary of State to set out a mechanism for the
inspection of new immigration officers. As we heard from a number of
witnesses, the oversight of the new powers that the officers are to be
given is of particular concern to practitioners in the
field.
The need for
such an amendment is backed up by some of the written evidence that we
received. I was struck by the remarks from Liberty that once an
immigration officer has been designated, he or she will enjoy
considerable power, covering not only detention but search and the use
of reasonable force. Indeed, anybody who absconds from the custody of
an immigration officer who holds the new powers will be committing an
offence. Liberty acknowledges that there might be occasions when no
police constable is present on which it is appropriate to detain and
search. It also notes, crucially to the amendments, that the extension
is part of a general trend to grant powers traditionally reserved for
the police to those who have not received police training. Indeed, the
Government state in background notes that a person must be fit and
proper and suitably
trained.
In
this and other amendments we are seeking to strengthen and tighten the
definitions. Clearly, if the extra powers given to immigration officers
are to work, they will require substantial extra training, probably at
considerable expense. Therefore, amendment No. 36 seeks to protect the
taxpayer, inter alia, by seeking to ensure that there is no great
turnover of designated officers and that people trained at public
expense are not designated officers for only a short period. I imagine
that that is in no way the Ministers intention, but for the
reasons I have outlined, it would be useful to have provision in the
Bill to ensure that once someone is a designated immigration officer,
they are expected to be so for a considerable period. Throughout the
public service and in the private sector, anyone who has managed an
organisation will recognise the benefits associated with continuity of
service. In particular, when we are asking people to do not only a
difficult job, but a difficult job that they have not been asked to do
before, with all the powers that they have been given, maintaining the
benefits of continuity of service seems particularly
important.
I
was struck by a concern pointed out to me by an immigration lawyer,
which was not just the cost of training, but the availability and
suitability of staff. She was particularly concerned about the
treatment of asylum seekers and the need to monitor the scheme very
carefully in order to ensure fair treatment; she was worried about the
assumption of criminality that seems to infuse that approach, although
that debate is for another part of the Bill. She made one important
point that affects the issues raised by the amendments: the fact that
the possibility of criminal charges means that the immigration officer
should be working with the criminal standard of a presumption of
innocence, rather than with the current code followed in immigration
matters, which works on the balance of probabilities.
Again, that
individual issue is not a matter for the amendments, but I think it
illustrates an important point. These challenges will be new ones for
immigration officers. It would therefore be unfair for the legislation
to ask the officers to proceed with the new powers without expecting
that they will do so for a considerable period and also, under
amendment No. 36, an awareness that they will be properly
inspected.
I should
like to pray in aid some of the oral evidence that we heard from
Mr. Richard Thomas in our second
sitting:
If
immigration officers were to be given these powers, the only benefit
would be if they were properly trained. If there were to be specialist
people at ports who had a specialist understanding of the needs of
foreign nationals who are entering and of the certain circumstances
that arise, there would be a benefit from it. There is not a benefit
from creating an ad hoc further police service at the ports when those
people do not have the appropriate
training.[Official Report, UK Borders Public
Bill Committee, 27 February 2007; c.
40-41.]
I think that that is
probably true, and moving specifically to amendment No. 36, it is also
true that the people exercising the new powers need to know that
someone is looking at them. As I said, the Government have stated that
such a person must be fit and proper, and the Bill is
awarding to immigration officers some of the strongest policing-type
powers that can be afforded to an individual. On amendment No.
35, the explanatory notes make no reference to any sort of public
accountability or redress for people who feel aggrieved or have
complaint, which is why we feel that there should be a mechanism for
the inspection of new immigration
officers.
The whole
Committee will be aware of the sensitivity of immigration as a public
policy issue. If we are to regain confidence in a system that has
clearly lost public confidence, people will need to know that the
system is fair to those who go through it, robust enough to protect our
borders and well managed. The vast majority of people will wish to see
that those who arrive at our ports seeking to enter are decently
treated. An inspectorate along the lines of Her Majestys
inspectorate of constabulary would go some way towards instilling
confidence in that respect.
I am aware that the Minister
has proposed bringing together various regulatory bodies that affect
the immigration service, but I hope that he recognises that the
amendments are designed to improve the Bill. If he accepts them, they
will make it clear that the immigration officers, who have been given
the new powers, will be expected to exercise them for some time and so
improve their own professionalism in the knowledge that there is a
properly funded, properly constituted inspection authority that will
reveal regularly to the public how good their performance is. In that
spirit of helpfulness, I commend the amendments to the
Committee.
The
Minister for Immigration, Citizenship and Nationality (Mr.
Liam Byrne):
I join the hon. Member for Ashford in saying
how glad I am to serve under your chairmanship, Mr. Illsley,
now under the more traditional arrangements that we are used to in
Committee. I congratulate the Leader of the House on the constitutional
innovation that we experienced last week. I thought that the
opportunity to listen to a
wide-ranging debate on some of the subjects that we will consider in
detail over the next few weeks was extremely valuable.
I shall make
a few points in response to the hon. Gentleman. I should like to thank
him for the thoughtful and constructive way in which the amendments
were presented and the arguments constructed. He is right to say that
the powers are considerable. They are important, because it is vital
that immigration officers have the chance to play their role in the
fight against crime and in the battle for national security. Different
proposals to strengthen our border have been discussed by Opposition
parties. There are no real legal barriers to a greater alignment of
powers at the border, but there are certain police-like powers that it
is important for immigration officers to take if they are to play their
part effectively in the challenges
ahead.
The
powers that we propose have been constructed carefully. They are
considerable; as the hon. Gentleman said, they include the power to use
reasonable force, but they have not been constructed so as to encompass
arrest. The obligations that we put on immigration officers include
summoning a police constable as soon as is reasonably practicable to
conduct arrest or interview or to carry out other core police
functions. We do not propose that immigration officers take on those
responsibilities, so it is important that the oversight arrangements
that are put in place are matched to the powers that we give to
immigration officers. The slight concern that I have about the
amendments is that they would delay implementation; they would add a
burden of secondary legislation and constrain the tactical ability of
chief immigration officers to designate immigration officers to secure
our border at times of particular crisis. I shall offer a few words of
reassurance in the hope that the hon. Gentleman will see fit to seek to
withdraw the
amendment.
10.45
am
The
first point that the hon. Gentleman made concerned training, which is
an important area. We have already worked closely with the police in
putting together quite a wide range of training that is appropriate to
provide immigration officers with the skills and the capabilities that
they will need in order to do a very difficult job, with the type of
professionalism that we see day in, day out in the immigration service.
Against these powers, we will need to put in place new training
proposals and we are working closely with Centrexthe Central
Police Training and Development Authoritywhich provides the
police training programme. That partnership will be important in
ensuring that there is police support to provide the type of training
that will be necessary if immigration officers are to do this job
effectively in
future.
There
are four or five points that I shall make in order to explain the
oversight arrangements that we envisage coming into place. Those
arrangements should give the hon. Gentleman some of the reassurance
that he is seeking when he asks, quite rightly in my view, for greater
transparency and accountability about how immigration officers are
asked to perform their
jobs.
Mr.
James Clappison (Hertsmere) (Con): I am listening
patiently to the Minister. Before he moves on from training, I should
like to make one point.
Although he has made a distinction between detention and arrest, as he
has accepted, force may have to be used in the process of detention,
and the difference between detention and arrest may be lost on those
who are subject to one or the other. He has also told us about the
training that will take place with the police. What consultations has
he had with those who represent the immigration officers about the
safety elements involved in this process, given that, in some cases,
the use of force by immigration officers will be
required?
The
Chairman:
Order. I apologise for interrupting the
Minister, but I should like to say that the point made by the hon.
Gentleman and the matter of training will be covered in the debate on
the next amendment. I intervened rather than have the Minister
necessarily repeat the same point, but it is obviously up to him to
decide.
Mr.
Byrne:
I am grateful for your guidance, Mr.
Illsley, and I hope that I will be able to satisfy the hon. Gentleman
at a later stage.
I want to
make four or five points about the type of oversights that we envisage
coming into place. Of course, the first is that immigration officers
are subject to a number of administrative oversight arrangements, which
will be used in order to monitor the powers contained in the clause.
Those arrangements will be similar to the oversight arrangements that
are already in place. Immigration officers already exercise quite a
wide range of powers, including, for example, the power to detain
foreign nationals. So there are a number of oversight arrangements and
review arrangements that are administrative in nature and they will be
helpful as a first layer of defence in this system.
The second point is about the
right to redress, to which the hon. Member for Ashford referred. That
right is important. Currently, there is an independent complaints
procedure, which the immigration and nationality directorate operates,
I believe very successfully. That would also be available to help to
provide the type of accountability and transparency that he is
seeking.
The third
point about oversight transparency and accountability relates to the
power of detention. The detention facilities provided for and by the
immigration service are subject to oversight by three organisations.
First, many hon. Members will know about the independent monitoring
boards, which are extremely important, giving members of the community
a chance to serve and to help us to get facilities and procedures
right. Secondly, there is the prisons and probation ombudsman. Thirdly,
there is Her Majestys chief inspector of prisons. The
immigration service and I often rely on the chief inspectors
reports in helping us to get many of our arrangements
correct.
My fourth
overall point is that section 41 of the Police and Justice Act 2006
provides a role for the Independent Police Complaints Commission also
to
examine specified immigration functions. This area is currently the
subject of discussions between the immigration service and others. We
hope that the consultation on precisely which immigration functions
will be subject to IPCC scrutiny will be commenced on 7 May. We hope
that by about the end of July or into the summer, the consultation will
be complete so that over the summer we will be able to lay regulations.
That will provide a great deal of reassurance.
My fifth and
final point about accountability and scrutiny relates, as the hon.
Member for Ashford may have guessed, to what we call the single
inspector. When I was first asked to take the job that I currently
perform for the Home Secretaryto greater or lesser degrees of
successI was surprised to see that about 11 different
organisations were responsible for providing scrutiny and
accountability for the immigration service. I think that that is far
too many. It is very difficult for 11 organisations to provide
effective scrutiny and to present conclusions with the force and punch
that is required for the immigration service to take a sustainable path
to improvement over the next few
years.
It
is not possible for the immigration service to implement the radical
reform that the Home Secretary announced last year unless there is much
stronger oversight. I believe that the oversight should be independent
and include the opportunity for communities to understand how the
immigration service is performing in their area. I will be seeking to
table Government amendments that provide for much stronger independent
inspection arrangements. I envisage that they will apply to the
enforcement functions that we are asking the immigration service to
perform, under powers available already and those proposed in the Bill.
With these reassurances in mind, I hope that the hon. Gentleman will
seek to withdraw his
amendment.
Paul
Rowen (Rochdale) (LD): I welcome what other Members have
said about your organisation, Mr. Illsley, and that of the
Officers of the House in what we did last week. It was a very valuable
and useful process that we can build on in our more formal
deliberations.
I
support the amendment. I believe that, as the Minister said, we have
extended the powers of immigration officers considerably over the past
few years, and the Bill builds on that process, recognising as it does
that the work of police officers at ports has become increasingly busy.
If they are to concentrate on some of the more important or pressing
issues such as trafficking and drug running, the use of immigration
officers provides a useful addition to their ability to stop people.
However, it is important that there is a very clear framework within
which these officers work to give them certainty about their powers and
their role. I thought that the earlier intervention on that particular
matter was quite important, because if an officer uses force
inappropriately, they can be subject to some sort of sanction through
the courts. It is therefore important that the powers that officers
have are set out clearly and that before they take on those powers,
they are given proper
training.
I would like
to refer Members to the comments made by Richard Thomas last
week:
Our
concern is that from the 1999, 2002 and 2004 Acts, there have been
extended powers to immigration officers. What has not gone on at the
same time has been the support provisions that go
with that for training officers and ensuring that they have access to
the relevant Police and Criminal Evidence Act 1984
training.[Official Report, UK Borders Public
Bill Committee, 27 February 2007; c.
39.]
That is
very clear. We have had three immigration Acts that have extended
immigration powers considerably. The immigration and nationality
directorate and the Government have so far failed to give the necessary
training that they have promised in the past. I appreciate what the
Minister has said and I look forward to seeing the amendments that he
tables. However, if we are to rebuild the immigration and nationality
directorate as being fair, effective, transparent and trusted, as set
out in the review, we must ensure that training is built in at the
start of the process, not as an afterthought. That has not happened
before.
I appreciate
what the hon. Member for Ashford said about officers who are designated
to act in a quasi-police position. It should not be the case that when
there is pressure at a port someone without any training can be
designated for that purpose. The six-month stipulation would give
certainty; it would provide a period during which training can take
place and ensure that people gain experience that comes only with using
the powers over a considerable time. Police community support officers
who operate on our streets get far more training than is given to
immigration officers. I am happy to support the proposal, but I hope
that the Minister, too, will table
amendments.
Mr.
Clappison:
I join hon. Members in welcoming you to
the Committee, Mr. Illsley, for the first part of our formal
consideration of the Bill. You were right to call me to order in your
initial ruling on the question that I sought to ask the Minister. I had
perhaps not sufficiently co-ordinated my question regarding amendment
No. 37, to which we will come later, which calls for consultation on
the code of conduct to which immigration officers will be subject. I
mentioned the word consultation, which is dealt with in
that amendment.
However, I want to make a
different point now, Mr. Illsley. The code of conduct
relates to the behaviour of immigration officers; it is the substance
of that later amendment and of our debate this morning, which has been
a proper debate, with proper questions put by my hon. Friend the Member
for Ashford and proper answers given by the Minister.
The subject of the debate is
the conduct of immigration officers, how they will be designated and
how they will exercise their responsibilities in relation to a person
who can be detained for up to three hours pending the arrival of police
officers. My point now is that we should consider the matter from a
slightly different point of view, without taking anything away from the
need for immigration officers to have high standards of behaviour in
how they use their powers.
I am slightly concerned about
the question of guaranteeing the safety of immigration officers,
because the Bill gives them a power that may involve the use of
reasonable force to detain a person. It does not take a great leap of
imagination to realise that there will be situations in which problems
give rise to the exercise of that power. As I said, a person who is
subject to that power may not see the necessary distinction between
being detained and being arrested.
As a member of the
Select Committee on Home Affairs, I visited immigration officers
carrying out their duties at ports and other places, and I and other
hon. Members know that when immigration officers exercise their current
powers people can become very heated. I foresee some very heated
situations indeed if they have to exercise the power of detention. I
want reassurance from the Minister that immigration officers
safety will be borne in mind and that they will be given the necessary
training and equipment to carry out their responsibilities
safely.
Damian
Green:
I was interested in and, in part, gratified by the
Ministers response. He recognises the need for better oversight
than exists at present or will be available through the Bill. As my
hon. Friend the Member for Hertsmere and the hon. Member for Rochdale
said, that is a widespread concern on the Opposition Benches and
beyond. The Minister will have heard Keith Best of the Immigration
Advisory Service say in his oral evidence that one of the material
aspects of accountability, to make it transparent and acceptable, is
independence. Without that element of independence, he feared that any
system would fall down and would not gain public
confidence.
11
am
I am sure that
the Minister is as interested as anyone in ensuring that there is
proper public confidence in the system. With that in mind, I am
gratified that he will be introducing Government amendments to allow us
to look at his proposals for inspection of the immigration system. I
hope that before we conclude the debate on these amendments, he will
let us know when that will happen, because I have been around long
enough to have seen Bills radically changed in their lordships
House with only a short amount of time allowed for the Bills
remaining stages on Third Reading in the Commons. In such cases,
legislation is passed that the House of Commons has effectively not
scrutinised at all. I am sure that he wants to avoid that happening in
this case, not least because he will have seen the widespread concerns.
I hope that he can give us some reassurance that this House will have a
decent opportunity to look at his
proposals.
Damian
Green:
That is extremely good news. I am delighted that on
the first group of amendments on clause 1 we have already seen a
positive response from the Government. In that spirit of mutual good
will, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
(4) The Secretary
of State shall, by regulation, make provision as to the necessary
qualifications and training for a designated immigration
officer.
(5) Regulations under
subsection (4) shall be published no less than six months before the
commencement of Section 1 of this
Act..
Damian
Green:
As you observed earlier, Mr. Illsley, it
may seem that some of the debate has already taken place. Amendment No.
34 is about the vital issue of training the designated immigration
officers who will be given the extra powers. It specifies that the
regulations that we want to add to the clause should be published no
less than six months before the commencement of clause 1 of the Bill.
The interaction of the commencement of various provisions of the Bill,
and the ability of the public and those who are particularly concerned
with this to scrutinise it, seems to me particularly important. Too
oftenthis is a wider point than the one that I just made about
parliamentary scrutinyimportant regulations are consulted on
over the summer or at Christmas, which makes it extremely difficult for
those who want to contribute to do so in a coherent way. Heaven forfend
the cynical suggestion that that is precisely why that tends to
happen.
Amendment No.
34 would require the Secretary of State to specify the qualifications
and training requirements of the designated immigration officers before
the Bill comes into force. Over the past half hour, the Minister will
have observed that I have said how important many people consider that
to be. For example, in evidence that we took last week, Mr.
Richard Thomas made the point that there are not enough trained
officers to do the new jobs. I am sure that the Minister is aware that
the training of the new officers will be crucial in deciding whether
the Bill has a positive effect. The first time that a badly trained and
badly prepared officer makes a mistake using the new powers, the wrath
of many people will be brought down on the head of the Minister and,
indeed, of the Home Secretary. The Minister and the Government
therefore have an interest in ensuring that the training of designated
officers is as good as it can
be.
The problem is
that substantial powers are being granted, but we cannot tell from the
Bill what they will be. It is not unreasonable for Parliament to know
about the calibre of the people being granted the extra powers and the
training that they will receive. As I have said, those who suffer at
the hands of an ill-trained officer will certainly be angry. Turning
that around, however, it is important for the House to do its duty by
immigration officers as well, because they will find themselves in
potentially violent and dangerous situations. We must insist that they
are adequately trained for the job that they are being asked to
do.
David
T.C. Davies (Monmouth) (Con): Does my hon. Friend agree
that immigration officers, who occasionally face violent and angry
people, should spend time being trained in self-defence techniques and
Centrex holds to enable them to detain suspects without hurting
them?
Damian
Green:
On the principle that politicians should not
micro-manage professions for which they have responsibility, I would
not seek to specify the exact balance of training. However, my hon.
Friend has made the valuable point that training should be relevant to
the day-to-day jobs of immigration officers and, indeed, of all
front-line staff in the public service, who should be adequately
trained to deal with the situations in which they are likely to find
themselves. I
shall resist the temptation to say that training should be provided by
Centrex, because it closed a police training college in my
constituency.
Amendment
No. 34 asks for, among other things, the advanced publication of the
regulations, which is not new or unusual. It will allow this House,
immigration officers themselves, the relevant trade unions and other
interested parties to know what officers are being asked to do and how
they will be trained to do it, and to seek to improve the regulations.
Liberty has raised a vital point: for the first time, immigration
officers will be given quite extensive powers over British citizens,
who will be brought under the control of the immigration service. Such
powers will be even more sensitive than other immigration powers,
particularly when they involve detention. We have had a mild debate
already about the difference between detention and arrest, and I agree
with my hon. Friend the Member for Hertsmere that for those on the
wrong end of it, it might involve a distinction without a
difference.
There is
particular concern about how immigration officers will be trained to
deal with such matters, because there is no need for the suspected
offending to be related to border control. Liberty has argued that if
the powers are to be created, they should be limited to situations in
which the offence is concerned with immigration. I do not agree with
that point, because such powers would be too narrow, but it illustrates
the valuable point about the sensitivity arising from the extra powers.
There may well be British nationals involved in, for example, people
trafficking, and extra powers will clearly be extremely welcome in such
areas. However, I invite the Minister to consider the absolute
centrality of good training for the successful application of these new
powers not only to those arriving in this country from abroad, but to
the millions of British citizens who travel through our ports and
airports every year and who, on returning to this country, will be
going past immigration officers who have been given these
powers.
Mr.
Byrne:
I thank hon. Members for praising the
professionalism of our immigration service; they are absolutely right
that it does an extremely difficult job. The number of passengers
travelling through our ports is not decreasing but rapidly increasing,
which is precisely why we have tripled the number of warranted officers
in the IND over the past few years, with about 70 per cent. of those
officers serving on our borders. We have ensured strengthened training
provisions as we have increased numbers, so that those new officers are
able to operate with the pride and professionalism that is a hallmark
of the immigration service.
I want to respond by coming
back to one central point: we have to ensure in our arguments here that
we are calibrating both the training and the oversight to the power
that we are seeking. It is perfectly appropriate for the training and
the oversight to be slightly different from and not symmetrical to the
arrangements that we already have in place for the police. We are not
asking immigration officers to conduct the same activities as the
police or equipping them with the same powers.
My point to the hon. Member for
Hertsmere echoes that made by our director of border control, Tony
Smith, who last week said quite rightly that
immigration officers occasionally find themselves in confrontational
situationsat the moment, those situations are not so much with
British citizens as with foreign nationals. Dealing with situations
that are often difficult, confrontational or heated is not outside the
ambit of todays immigration officers. Those situations require
the use of reasonable force or detention. Immigration officers have
those powers currently, and they must exercise them in relation to
foreign nationals. Because immigration officers are having to do that,
many of the training and oversight provisions that we would need to put
in place to support them in exercising the powers that we ask for in
this Bill that relate to British citizens are provisions and
capabilities that we have already had to put in place.
Secondly, the point about
training is so important that we do not believe that the Secretary of
State should have the power to designate an immigration officer who he
does not believe to be a fit and proper person. So,
there are a number of hurdles that immigration officers must pass
before they can put themselves into the category where they might
receive such a designation, and there are a number of checks about
which the Home Secretary must be satisfied before he can designate
somebody as fit and proper. Adequate and appropriate
training would, of course, be integral to that definition.
The hon. Member for Hertsmere
raised a valuable point about whether this matter has been discussed
with unions; the answer is yes, and they are satisfied with these new
arrangements provided that training is given and that clear guidance is
in place. That is already happening in the immigration service under a
programme we have in place called Developing enforcement
capability, which is designed to reduce our reliance on the
police not only at the border but in-country and to create the kind of
operational independence that we think that the immigration service
will need in
future.
11.15
am
Damian
Green:
I want to take the Minister back his point
that the Home Secretary will be very careful about how he creates a
designated immigration officer, and to the need to be certain about the
appropriate level of skills and training. What percentage of
existing immigration officers will become designated immigration
officers?
Mr.
Byrne:
I am grateful for that intervention. During one of
our evidence sessions last week, the director of border control, Tony
Smith, said that he imagined that possibly as many as 25 per cent. of
immigration officers could be so designated. We would need to keep the
number under review, because it might have to go upwe would
have to adjust it in light of operational realities and the changing
picture at our borders. As I said a moment ago, the volume of traffic
through our borders is going up, not down. The patterns of immigration,
migration and travel through our borders might change and the number of
British citizens as a fraction of the total travelling might increase
if the budget airlines continue to expand at the rate at which they
have in recent years. We would need to keep that under
review.
However, the checks that the
Home Secretary must be satisfied about before designating somebody as a
fit and proper person are important. They might include background or
health checks. They would certainly include a particular kind of
training. I mentioned a moment ago the training that has been developed
by Centrex. That is a pass or fail course, so immigration officers
would need to pass before they could be designated as fit and
proper.
We will seek
to discuss with both the Association of Chief Police Officers and the
policing standards unit the process of designation and the criteria on
which an officer must satisfy the Home Secretary before he can be
deemed fit and proper. I can give the hon. Gentleman a couple of points
of reassurance. The first is that once we have had those discussions we
will seek to make the criteria public so that they can be subject to
scrutiny. The second is that I fear that the effect of the amendment
would be to make it rather difficult not only to implement regulations
but to adjust them. Given the dynamic and changing nature of our
borders and the traffic going through them, it might well be that best
practice will emerge quickly. I do not think that hon. Members would
want to slow down the speed with which we could introduce improvements
and refinements to the guidance.
If there is
no parliamentary check on the implementation of the regulations through
secondary legislation, that poses an important question about how the
House can be satisfied that there are appropriate scrutiny arrangements
to ensure that we do not designate officers who do not have the right
training. That is why I think that it is so important for enforcement
to form part of the terms of reference of the proposed new single
regulator. The new regulator should have the ability to scrutinise the
way in which the IND performs its enforcement responsibilities. The
hon. Gentleman will know that a little while ago we published a
consultation document on how we envisaged that new regulator coming
into being. That posed some questions about the number of organisations
that should be folded into the new regulator and the scope of that
regulators responsibilities.
I hope to be
able to table the relevant amendments by Thursday. At the same time, we
will seek to publish the Governments response to the
consultation and a summary of the consultation responses that we
received. It is important that the House has not only the
Governments take on the subject but that of the organisations
that responded. I do not think that I will get into too much trouble
with the parliamentary authorities if I say that the responses to the
consultation were overwhelmingly supportive, not least from the
existing regulators. They recognised that 11 different regulators are
far too many to hold the IND to account. It is much more important that
we have regulator punch.
With those reassurances in
mind, and with my concern that we can modify and update regulations to
reflect best practice as quickly as possible, subject to having more
effective scrutiny arrangements in place, I hope that the hon. Member
for Ashford will feel able to withdraw the
amendment.
Paul
Rowen:
I support the remarks of the hon. Member for
Ashford. It is important to set out in the Bill that regulations will
be put in place and that they will come into effect before the
commencement of the Act. It has
already been said that our immigration officers do a fantastic job,
often in very difficult circumstances. The Minister mentioned that. For
example, on Sunday morning three large jumbos arrived at Manchester at
the same time and it took people an hour and a half to get through
immigration. Nevertheless, the immigration officer could only apologise
for the delay and everyone was dealt with extremely well and speedily.
I was interested in what the Minister said, particularly his point that
the regulations may change over time and that there should therefore be
some parliamentary scrutiny of them. If the Minister is assuring us
that those regulations will be subject to some form of affirmative
resolution, I would support
that.
Damian
Green:
I enjoyed the sting in the tail of the hon.
Gentlemans remarks, about affirmative resolutions. I am sure
that the Minister will want to respond at the appropriate time, perhaps
when he moves the amendments later this week. I am grateful for his
response. Obviously he wants designated immigration officers to have
proper training, but I sense that he accepts the other half of the
thinking behind the amendment, which is about the transparency and the
accountability that we all want. I hope that his proposed amendments
will achieve that too. One aspect that he did not discuss was the cost.
Clearly if we are to have something like 25 per cent. as an initial
target for designated immigration officers, the Department must have
some figures about what sort of training costs will be needed. I hope
that as this Committee progresses we can discuss that too.
The Minister will be aware from
submissions that have been made that there is concern not just about
the costs of training but about the necessity for it because of the
patchy nature of the Departments current reputation. Members on
both side have rightly paid tribute to those on the front line of the
immigration service, who work at our ports and airports doing a vital
job. The Minister will be aware as anyone that it would be an
exaggeration, and indeed untrue, to say that there is huge and
widespread public confidence in the IND. The Secretary of State himself
famously described it as not fit for purpose. Therefore this
combination of proper training and transparency is particularly
essential if public confidence in the new system is to be
maintained.
I take
what the Minister has said at face value. I am sure that he said it in
good faith. We will look forward to the Government amendments that will
be moved later this week. In eager anticipation of those, I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
.
(4) The Secretary
of State shall issue a code of practice relating to the conduct of
designated immigration officers for the purposes of section
2.
(5) Before issuing a code of
practice under subsection (4), the Secretary of State shall
consult
(a)
representatives of the Immigration
Service;
(b) the Director
General of the Immigration and Nationality
Directorate;
(c) representatives of relevant trades
unions;
(d) representatives of
the Immigration Law Practitioners Association;
and
(e) such other persons as
he thinks
fit..
No. 67, in
clause 1, page 1, line 11, at
end add
(4) Designated
immigration officers will conform to the Police and Criminal Evidence
Act (1984) Codes of
Practice..
No.
68, in
clause 1, page 1, line 11, at
end add
(4) Complaints
against designated immigration officers may be referred to the
Independent Police Complaints
Commission..
Damian
Green:
The amendment would require the Secretary of State
to issue a code of practice for immigration officers and to consult
relevant bodies and individuals. It is a natural successor to the
previous debate. Proper consultation, about not only the training of
immigration officers but their conduct when they do the job, is
important.
[
Interruption.
]
Damian
Green:
Thank you, Mr. Illsley. The most
effective heckle I ever received was from my three-year-old daughter,
who, at a constituency function, asked in that piercing voice that only
three-year-olds have, Mummy, why is Daddy being so
boring? I have long experience of heckling from the
young.
I shall refer
briefly to amendments Nos. 67 and 68, but I shall leave the hon. Member
for Rochdale to speak to them in detail. Amendment. No. 37 would ensure
a proper level of consultation in relation to a properly published code
of practice for when the new powers are in operation. I share
Libertys concern that the Bill and the explanatory notes make
no reference to any sort of public accountability or redress for people
who feel aggrieved or have complaint. We are all waiting agog for the
proposals for the new regulator and the amendments to them, as we will
have something against which to test
them.
The code of
practice would be hugely important, not only for potentially aggrieved
members of the public, but for the designated immigration officers
themselves, particularly in the early months and years of the operation
of the new powers. The officers will want to know that they are acting
correctly, that they are not pushing boundaries and that what they are
doing would not be regarded as unacceptable by their political masters,
let alone by the general public. At present, this area of the Bill is a
bit vague and therefore inadequate to achieve what the Minister
hopes.
We have
suggested in the amendment a number of bodies that should be properly
consulted: the immigration service, which goes without saying; the
director general of the IND; the relevant trade unions, which I hope
would commend the amendment to some Government Members; representatives
of the Immigration Law Practitioners Association, who spend
their daily lives in contact with the effects of the actions of
immigration officers; and such other persons as he thinks fit, as it is
not an exhaustive list. It would be foolish to try to put in the Bill
an exhaustive list of those who should be consulted before a code of
practice is issued.
I think that the Minister will
recognise that the issue is so important that it is worth having a
proper consultation and, equally, a proper code of practice. Without
it, one can foresee all sorts of obvious pitfalls for the legislation
and those who have to implement it. I hope that the Minister will cast
a sympathetic eye over the
amendment.
11.30
am
I
will leave amendments Nos. 67 and 68, which are grouped with my
amendment, to the hon. Member for Rochdale to speak on at length. I
would merely make the point that, while the amendments might well
achieve some good things, I suspect that the hon. Gentleman would agree
that they would be unnecessary were the proposals before us for a
properly integrated border police force. That is what his party and
mineindeed, almost everyone else in the countrywant to
see, leaving the Minister and the Government on their own in not
wishing to see such a
force.
Paul
Rowen:
Again, I echo and support the remarks of the hon.
Member for Ashford on his amendment and on my amendments. We are
attempting to place a little bit more detail in the Bill on what code
of practice should apply to immigration officers when they exercise a
police function.
I
would again like to remind the hon. Members of and refer them to the
remarks of Mr. Richard Thomas in our deliberations last
week, when he said that the Police and Criminal Evidence Act 1984 was
first introduced for the very reason that we are proposing now: to give
police officers some support and assurance about what their powers were
and were not. We are proposing a sizeable extension of immigration
officers powers; we are asking them to act in a quasi-police
position. I know that the point was made on Second Reading, but it is
important that the actual code of practice that the immigration
officers will work under is well known and is published and in
operation before they are asked to exercise those powers.
PACE is relevant because those
regulations are tried and tested. We have already had a discussion
about the training and when it takes place. As other hon. Members said,
there needs to be a clear framework not just for the person who is
being dealt with by the immigration officer but for the immigration
officers themselves. There needs to be certainty about what powers the
officers have and what training they have. We believe that the PACE
regulations, which are tried and tested and have the support of all the
various people involved, offer the way forward. They may need
adaptation; there is no reason why the Minister cannot lay regulations
before the House that would set out which provisions were being put in
place.
Amendment No.
68, which is also in my name, has already been referred to by the
Minister and is about the ability of persons who feel that they have
not been properly treated to use the IPCC. I should be interested if
the Minister would outline which provisions of the IPCC he proposes to
apply to immigration officers. I believe that the use of the IPCC will
only occur very rarely; as I said earlier, immigration officers will
operate to a high standard. However, when something goes wrong, how
someone makes a complaint, how that complaint is dealt with and
investigated and how
any necessary action is taken are an important part of the Bill. I hope
that the Minister can outline some of the discussions that have already
taken place and what provisions from that process will apply. If he
does so, we will have made progress on this part of the
Bill.
Mr.
Byrne:
I start by reassuring the hon. Member for Ashford
that no one on the Committee shares his daughters analysis,
although she might have a degree of insight that we do not. However, we
are following his argument with great attention to detail and he made
it with much thought and
insight.
That said, I
am very sympathetic to the ambitions of the amendments and I hope that
my words will provide reassurance sufficient for hon. Members to see
fit not to press them. Amendments Nos. 37, 67 and 68 effectively would
provide for three things to happen: for the introduction of a code of
practice subject to consultation with stakeholders, for designated
officers to conform to PACE, and for them to be referable, as it were,
to the IPCC. The points with which I have particular sympathy are
twofold. First, it is essential that operational guidance is in place,
that immigration officers understand the role that they are expected to
play and that the public can see what kind of guidance we are putting
in place.
Secondly, it
is important that that operational guidance is discussed at length with
stakeholders in order to get what is often very valuable advice from
organisations such as the Immigration Law Practitioners' Association,
ACPO and the Police Standards Unit, and from trade unions, particularly
the Public and Commercial Services Union, which have to bear on the
decision. The operational guidance that we propose to put in place will
be discussed with the immigration service, ACPO, the Police Standards
Unit, the mainline staff of the IND, and trade unions. It will also be
shared and discussed with the INDs wider group of stakeholders,
from whose advice we profit daily. I am delighted to say that that
stakeholder group includes ILPA. As the hon. Member for Ashford said,
that organisation is in daily, if not hourly contact with many of the
consequences of the immigration system. Its advice is often extremely
helpful and we are grateful for
it.
Therefore,
the guidance that we draw up, on the basis of that consultation with
stakeholders, is and must be publicly available. It is vital that it be
subject to public scrutiny and to the degree of transparency to which I
alluded earlier. My only concern about the amendments is that they
might impose, through the parliamentary process, delays, and
administrative and regulatory burdens, when refreshing guidance quickly
enough to take account of best practice as it is developed on the front
line.
I offer two or
three points by way of reassurance. If oversight is not to be provided
by a parliamentary scrutiny process, another form of scrutiny must take
its place. That said, it is important to re-emphasise this point: we
are asking immigration officers not to supplant, but to support the
police. That is why we have stated in the Bill that it is important
that immigration officers summon a police constable as soon as is
reasonably practicable, in order, where necessary, to make arrests, as
well as to conduct investigations. We are not asking immigration
officers to conduct investigations, which is why we do not think that
it is appropriate to subject immigration officers to the provisions in
PACE.
If immigration officers, as a
matter of course in all their activities, were subject to PACE, we
would of course have to introduce PACE facilities at all our ports. For
example, we would have to introduce recording facilities and many of
the other protections. That might be a step too far for many private
sector operators at ports, but the Committee can be reassured that we
are not extending the orbit and remit of immigration officers to such a
dramatic extent that PACE protections would be
important.
Mr.
Stewart Jackson (Peterborough) (Con): If I may,
Mr. Illsley, I want to probe the Minister on the substance
of the amendment tabled by my hon. Friend the Member for Ashford. The
Minister will know, because we discussed it last week, that my hon.
Friend the Member for Monmouth has not received satisfactory answers in
respect of the number of compensation claims made against the IND and
immigration officers, which is troubling, and he has therefore had to
resort to the Freedom of Information Act 2000. Does not the Minister
believe that there would be a causal link between including the code of
practice in the Bill and the reduction of vexatious and malicious
complaints against the immigration
service?
Mr.
Byrne:
I am grateful to the hon. Gentleman for reminding
me that I must follow up on my commitment last week to respond to the
hon. Member for Monmouth.
If we accept that there are
problems with the application of PACE to the functions conducted by
immigration officers, not least the practical costs that we would
impose on ports that would be required to make PACE facilities
available, it would still leave us with the question of what is the
most appropriate and transparent form of oversight and scrutiny of the
immigration servicean issue to which the hon. Member for
Peterborough rightly drew attention.
An important triple check is in
place to provide guidance to steer immigration officers in carrying out
their duties, and to scrutinise their conduct when doing so. It is
important for independent monitoring boards and for the prison and
probation ombudsman and Her Majestys chief inspector of prisons
to review detention facilities, and to provide detailed and frequent
reports to Ministers and to the House about what they find, and for the
Home Office and the IND to state clearly how they intend to respond to
them.
Secondly,
section 41 of the Police and Justice Act 2006 provides for an
augmented role for the IPCC in specified functions. I had the privilege
of taking the Bill through its Report stage in that heady fortnight in
May last year during my brief sojourn as the Minister with
responsibility for police and counter-terrorism. It is important that
the scope of that remit is not just something that the Home Office or
the IND makes up, but that it is subject to public consultation. Having
secured Royal Assent to the 2006 Act, we plan to embark on that
consultation to open up a debate on what precisely the IPCCs
remit should be. As I said, we hope those regulations will be
commenced, debated and scrutinised by October.
The third check is the single
regulator on which my arguments greatly rely: I underline that it is
important that the regulator is given the chance to scrutinise the
enforcement activities that immigration officers perform in relation to
foreign nationals and British citizens.
Paul
Rowen:
Can the Minister confirm that the regulations and
codes will be subject to negative or affirmative parliamentary
approval?
Mr.
Byrne:
I am grateful for the opportunity to clarify the
issue. We would impose what could be a very inappropriate delay if we
subjected a code of practice and regulations to parliamentary approval.
Instead, it is important that we have the flexibility and ability to
update those regulations with speed. When we find that there is good
practice somewhere, it is important that that becomes good practice
everywhere. Therefore, the flexibility to update regulations quickly is
important. I accept that that leaves a question about how we ensure
transparency, accountability and scrutiny, and that is why the triple
check that I have outlined is essential. I hope that my argument
provides some satisfaction for hon. Members and that they will see fit
to withdraw the
amendment.
11.45
am
Damian
Green:
The Minister has said the same thing twice, namely
that a level of parliamentary scrutiny would introduce a degree of
inflexibility. He is now moving on to territory that I find quite
disturbing, and also, frankly, not very
realistic.
We all
agree that there should be a proper code of practice. It is clearly
sensible that that should be consulted on as widely as possible, and
published, and that Parliament should be able to examine it. It is just
not the case that the existence of that degree of parliamentary
scrutiny would, in some way, impair the operational efficiency of the
immigration service.
Mr.
Byrne:
It is important that Parliament has the opportunity
to scrutinise the code of practice, but I fear that, if we gave
Parliament the role of approving it before its implementation, that
might create a delay that is disproportionate and possibly
dangerous.
Damian
Green:
I am grateful to the Minister for clarifying what
he meant, but I disagree with his clarification. First, as a matter of
principle, I become extremely uneasy when representatives of the
Executive say that they want to change something but that it would be
inefficient to allow Parliament to approve it. After all, that is what
we are here for. It is why we are sent to this place: to approve or
disapprove of proposals by the Executive. It seems to me that, if the
Minister would listen to his own words, he would recognise in private
moments that they are not an acceptable expression of the balance of
power between the Executive and the legislature in this
system.
However, I
should like to return from the theoretical to the practical. The
Minister argued that, if good practice were to appear anywhere in the
system, the need to have parliamentary approval for a code of practice
would, in some way, inhibit the immigration
service from spreading that good practice around. I just do not believe
that argument; in practice, that would not happen. Clearly, any code of
practice would be written with a degree of generality that would guide
officers into proper streams of activity as they carried out their job
daily, but it would not restrict them from producing innovations or
adopting innovations that had been successful at other ports or
airports.
The
Minister is setting up a straw man to knock down; I do not think that
there would be any reduction in operational efficiency. Also, the
doctrine that he has espoused, of unnecessary delay being caused by the
need for parliamentary approval of regulations, is quite
dangerous.
Having
aired those views, I do not wish to press the amendment to a vote, so I
will beg to ask leave to withdraw the amendment. However, I hope that
the Minister has taken note of my remarks.
Paul
Rowen:
I believe that the Minister has been genuinely
helpful this morning, in outlining what the Departments are planning to
do. I look forward to seeing the amendment when we receive it on
Thursday, and, based on what he said, I believe that we are moving in
the right direction. The consultation with and involvement of a range
of organisations, including the independent regulator, is
important.
Nevertheless, as the hon.
Member for Ashford said, there is an important principle at stake here.
All organisations and all laws should be accountable to this House. I
would ask hon. Members to look at the problem in the US at the moment
with their border police, who are virtually a law unto themselves. Last
week, a 19-year-old young man who went over to the US to spend some
time with family was summarily arrested and deported back to Britain.
If we are to introduce new powers that give immigration officers the
powers to stop and detain and to ask questions that, if anybody
responds to them inappropriately, can be subject to criminal sanction,
then I believe that the code of practice and the framework that we are
setting in place need to be subject to some form of recourse to this
House. I do not believe that that would be a time-consuming and lengthy
process. We do not have these codes of practice. I mentioned earlier
our concern that the last three immigration Acts had promised that
regulations and codes of practice would be introduced and it did not
happen. We have waited since 2001. I believe that if the Bill is to
operate successfully and efficiently, those regulations and codes of
practice must come back to this House.
Therefore, although I shall
withdraw the amendment, I do believe that when we see the
Ministers amendments we may wish to amend them further to
ensure that that Parliamentary scrutiny is built
in.
The
Chairman:
For clarification, the hon. Gentlemens
amendments have not been moved but simply debated as part of a group
and we will arrive at the amendments later on in the grouping as we
move through the Committee. The only amendment that we are considering
at the moment is amendment No. 37 in the name of the hon. Member for
Ashford.
Amendment,
by leave,
withdrawn.
(4) After section
11(1)(m) of the Children Act 2004 (c. 31)
insert
(n)
designated immigration officers in
England..
We have had a
discussion in this section about the powers that we are asking
immigration officers to accept. Clause 1 gives them the power to detain
foreign nationals and British citizens, and that can include children.
The effect of my amendment is quite simple and straightforward. At the
moment immigration officers are not subject to the Children Act 2004;
they are specifically excluded from it. We believe it is vital for the
protection of the officer, as much as for the person that they may come
into contact with, that the provisions of the 2004 Act apply. That will
ensure that certain checks take place and that certain procedures are
followed. At the end of the day, that can only be for the protection of
the officer as much as for the person.
It
is an important point, which several people who have submitted written
evidence have mentioned. I refer Members to the written submission by
the Refugee Childrens Consortium, which particularly expressed
concern about this. It is a small amendment but an important one. It
ensures that immigration officers are subject to the 2004 Act, which in
my view can only be a strengthening of their position and something
which I hope all hon. Members can support.
Damian
Green:
I think this area of immigration policy is as
difficult as any. The hon. Gentleman is quite right to raise it because
there are two genuinely conflicting principles here and I am sure that
the Minister feels as strongly about them as anyone. The first is that
we need a proper, efficient, secure immigration system and the second
is that we should pay particular regard to the interests of children.
It is not easy to reconcile those two principles at our borders at a
time when something like 3,000 unaccompanied children per year are
arriving in this country. It would have been particularly valuable to
hear oral evidence from the Refugee Childrens Consortium
because both sides of the Committee could have explored those genuinely
conflicting principlesthat is why that particular decision was
so regrettable.
The
amendment before us, as has been said, simply adds the designated
immigration officers to those subject to the various conditions of the
2004 Act. That means that they would have to give primary consideration
to the needs of children and families. When the Act was passing through
Parliament, the Refugee Childrens Consortium sought to insert
such a provision and only narrowly lost a Division in the House of
Lords.
The then
Chairman of the Joint Committee on Human Rights criticised opposition
to such a provision on the basis that the omission of refugee children
from the institutional arrangements designed to fulfil the
states positive obligations to children under articles 2, 3 and
8 of the convention on human rights raises the question whether that
gives rise to unjustifiable discrimination in the enjoyment of
convention rights.
At the time, the Minister argued that the duty to have regard to
safeguarding and promoting the welfare of children could severely
compromise our ability to maintain an effective asylum system and
strong immigration controland there lies this clash of moral
principles.
The
Minister and the Government have come down on the side of, as they see
it, an effective asylum system and strong immigration control. I have
some sympathy with that as, over the past few years, we have not had an
effective asylum system or strong immigration control. I can therefore
imagine why the Government felt unable to add this apparently simple
clause to the 2004 Act as it would potentially have made what was
already a terrible situation even worse.
In those debates, the Minister
went on to argueas I suspect it is possible he will
todaythat in undertaking its function, the IND will do things
that will be judged as inconsistent with the duty to safeguard and
promote the welfare of children. That is quite a strong statement and
is what he was arguing in the House of Lords. To say that we will do
things inconsistent with the welfare of children is quite eye-opening
as a statement of Government policy. As he arguedagain I have
some sympathy with thisin practice, that could be used as a
means of delaying or preventing people from being returned home. We
cannot do that. Again, I imagine that this is the basis of his case: if
we are going to run an effective asylum system and strong immigration
control, we must have the power to return people home who have no
entitlement to be in this country, even if they are
children.
To
be fair, the Refugee Childrens Consortium welcomed the
assurance given in the Home Offices consultation paper on
unaccompanied children that the Government will take those things
seriously, but it goes on to argue that it is alarming that the
Government cannot offer refugee children the protection afforded by
section 11 of the 2004 Act, in relation to the institutions and bodies
responsible for their care and welfare. Their argument that section 11
is not an absolute duty is reasonable. It simply requires agencies to
make arrangements to have regard to the need to safeguard children and
promote their welfare in the discharge of their functions.
When the Act was passed, the
Minister at the time argued that the Government had worded the clause
very carefully. She said that
they
do not put a duty
on agencies that would make them unable to fulfil their primary
functions.[Official Report, House of Lords, 17
June 2004; Vol. 662, c.
995.]
12
noon
This is
clearly not a debate across the Floor of the House. Ministers who have
been responsible for both immigration and childrens welfare in
this and the last Government have had to grapple with a genuine
problem, and while acknowledging that it is difficult, they have come
down against the view expressed in the amendment. I would like to hear
the updated version of the ministerial briefing that I suspect has gone
to Ministers from both those Governments about how the
obligations that we all recognise as essential under the Children Act
2004 can be properly balanced with the need for an effective
immigration system.
One argument put by the Refugee
Childrens Consortium is that the police are included, for
example. When we talk about giving immigration officers powers that
move towards those of a police constable, it seems even more difficult
than before to have set one set of duties for police officers that are
not being required of immigration officers when in other respects their
powers are being merged. The explanatory notes on the Bill that became
the 2004 Act
stated:
This
duty is intended to ensure that agencies are conscious of the need to
safeguard children and promote their welfare in the course of executing
their normal functions.
The Refugee Childrens Consortium
has taken legal advice telling it that the duty under section 11 of the
2004 Act does not give rise to a free-standing duty to safeguard or
promote a childs welfare, but qualifies the manner in which
existing duties and powers can be exercised.
I suspect that the nub of the
problem with which successive Ministers and Governments have grappled
is whether the section 11 duties actually preclude removal. That must
be the heart of the matter, because if they do not preclude removal,
the arguments against the amendment will tend to fall
away.
The
Refugee Childrens Consortium points out that the omission of
the immigration service from section 11 is brought into sharp focus by
the proposals before the House, precisely because of the broadening of
designated immigration officers powers. It arguesI do
not go all the way with it on thisthat it is impossible to
reconcile the Governments assertion that every child
matters with the exclusion of key agencies responsible
for the care of refugee children from section 11 of
the 2004 Act. It also argues that extending the
powers of immigration officers should not be approved
unless safeguards including the specific application of section 11 to
the immigration service are in place, and the hon. Member for Rochdale
has argued the case for that.
As I say, I have sympathy with
the Minister and his many predecessors who have had to argue this case.
However, I hope that he can address the central issue before us:
whether applying section 11 would, in any material way, make it
impossible for immigration officers to do their job properly, and in
particular, whether he sees it as precluding proper removal of children
at a time when more and more are coming to this country.
The point was again made in
oral evidence, this time by Keith Best, who said that there
are
about 3,000 children
a year coming into this country ... They need particular care
... they need care that will give them direct and immediate access
to legal advice, so that they can be assisted in their
claim.
On another
aspect, which I hope that the Minister can address when he responds on
this amendment, Keith Best went on to say
that
they also need to
be treated sympathetically when they reach that magic age of 18 because
it is a traumatic event to be told that, on your birthday, you will no
longer be given any kind of protection and you will be removed. So
there needs to be sensitivity.[Official
Report, UK Borders Public Bill Committee, 27 February 2007; c.
59.]
Whatever our attitude to the amendment, we
would all agree on the need for sensitivity and acknowledgement that
the likelihood of removal at 18 will be traumatic for the individuals
concerned, although that in itself is a symptom of the wider point that
striking this balance is not easy.
Unusually, I have sympathy for
the Minister over the dilemma that he faces in opposing the amendment,
but the terms of the argument that he uses are important. Like many, I
have grappled with the moral aspects of this issue. In a sense, I would
hope to be convinced by him that if we are to proceed with not
incorporating section 11, it is because its legal effect would be to
render our immigration and asylum systems much less effective. If he
cannot make that case, the moral case for including section 11 is
extremely strong. I shall be interested to hear what he has to
say.
Mr.
Byrne:
I am grateful for the thoughtful way in which the
hon. Members for Rochdale and for Ashford spoke to the amendment. I am
particularly grateful to the hon. Member for Ashford for his sympathy
about some of the decisions that we have to make and for the reminder
about the number of predecessors that I have enjoyed as an Immigration
Minister. Indeed, the Home Secretary advises me that when I go along to
meetings I am to introduce myself as the Immigration Minister for now.
I am not quite sure what he means by
that.
My remarks fall
under three headings. My first heading comes by way of clarification. I
will not roam too widely on the subject of refugee children, because I
understand that the provisions of the clause do not apply to such
children. I anticipate that they will apply to British children. The
powers that we are asking for in clauses 1 to 4 relate to the detention
not of foreign nationalsthose powers are already on the books
in the Immigration Act 1971but of British children.
There is also a helpful
distinction to draw between the immigration service and the police. The
police have a far more wide-ranging set of responsibilities than the
immigration service. Police officers may arrest children, and they may
have to visit children in their home. They may be investigating crimes
that involve the abuse of children. My final remark under this heading
is that it is a highly unusual for immigration officers to detain
British children. My expectation would be that the number would be
extremely
low.
Paul
Rowen:
I am interested in what the Minister is saying.
While that may be the practicality in terms of what might happen at a
port, we are making law that applies in general. In that sense we are
talking about circumstances in which an immigration officer might
detain someone. I accept that there may be a distinction between
someone coming into the country and someone going out, but nevertheless
one cannot say that asylum seeker children will not be detained in any
circumstance.
May I
refer the Minister to the report published by the chief inspector of
prisons, and in particular her comments on short holding facilities and
the fact that many detainees felt unsafe in those centres, and her
remark about John Lennon airport in Liverpool? It holds children for
short periods and she noted that there was evidence of the need for
staff training in the
protection of children. We are already getting reports that that is
needed. Surely, all that we are seeking to do is ensure that when the
Minister introduces his code of practice and regulations, he takes
account of the Children Act
2004.
Mr.
Byrne:
I am grateful to the hon. Gentleman. He anticipates
some of my remarks. The caveat that I would place on them is that the
powers relate to people who are liable to arrest or who immigration
officers think might be so liable. I would expect the exercise of those
powers with regard to British children to be rare. The detention of
asylum-seeking children is a matter for a different area of
legislation.
Nevertheless,
it is important to sketch out a response to some of the issues raised
by the hon. Members for Ashford and for Rochdale. Let me echo some of
the points that were made by Stuart Hyde, the director of enforcement,
in last weeks evidence session. First, the IND does indeed have
specially trained staff at ports of entry to deal with minors. That is
important. Secondly, comprehensive guidance is in place; I shall be
happy to ensure that copies of it are available in the Library. A good
example of the kind of work that is done at ports is what happens at
Heathrow, which accounts for nearly a third of passenger movements in
and out of the UK and where a joint team of immigration staff and
Metropolitan police child protection officers
operates.
Our
ambitions in that area are well illustrated by the fact that we work
with airlines nationally and internationally to draw up best practice
on the carriage of children. The immigration service was instrumental
in bringing forward changes to immigration rules that required parents
to demonstrate that adequate arrangements were in place for the travel,
reception and care of children visiting the United Kingdom.
My third point cuts to the
heart of the debate about section 11. It would be slightly unusual if
we were to make one particular class of officer in the immigration
service subject to the provisions of section 11. Despite what I said
about the differences between the policeas the hon. Member for
Ashford said, they are already subject to section 11and the
immigration service, there has to be a serious debate about whether the
IND should be subject to the same provisions. The debate should not be
on whether we ensure that a designated class of immigration officer is
subject to section 11, but on whether IND as a whole should be subject
to it. I hope that the Committee will draw some reassurance from the
fact that the wider debate is taking place, and that discussions are
ongoing between Jeremy Oppenheim, the IND childrens champion,
and the Childrens Commissioner, Sir Al Aynsley-Green, on how
IND can, as a corporate body, can be subject to the provisions of
section 11. Hon. Members should be able to draw some reassurance, even
if it is not complete, from those
remarks.
Damian
Green:
I am fascinated by the Ministers last
remarks. I am grateful to him for sharing with the Committee the fact
that those discussions are going on, but can he clarify whether it is
possible that in the later stages of the Bills passage he will
propose amendments that make the IND subject to section 11 of the
Children Act 2004? If not, can he indicate over what sort of time scale
the discussions are taking place? If another
immigration Bill is introduced in the next session of Parliament, as has
been widely suggested, might such an amendment be moved then? It would
be particularly useful for the Committee to know how much of that he
intends to introduce into the current Bill. Even if that is not the
intention, some suggestion of the time scale for the future would be
extremely
helpful.
12.15
pm
Mr.
Byrne:
I fear that you are about to rule me out of order,
Mr. Illsley, because this is so far removed from the
contents of the clause that I may incur your wrath: I do not want to
pre-empt the outcome of discussions currently under way, but if it is
helpful, I will explore what information I can provide to the Committee
at the earliest possible
opportunity.
Paul
Rowen:
I welcome the remarks of the Minister, particularly
those at the end. A move to make the whole of the IND subject to the
Children Act 2004 would be widely welcomed. Obviously, we are dealing
with a very specific clause and a very specific activity that certain
designated immigration officers are being asked to undertake. That is
the context in which I moved the amendment. I believe that most people
will welcome the Ministers remarks about extending the
provisions to the whole of the IND, given the scope within which it
operates. Perhaps the Minister will write and let us know about the
consultation and when he expects to give us more information on when
the IND will be subject to that particular revision. I beg to ask leave
to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Question
proposed, That the clause stand part of the
Bill.
Damian
Green:
We have had a useful set of discussions on the
clause in the context of the various amendments that the hon. Member
for Rochdale and I have moved. The Minister now has the flavour of our
concerns.
We have been
dealing specifically with immigration officers and the new designation
for 25 per cent. or so of them. A number of things are clear from the
debates on the various amendments. First, there have been universal
tributes to the skill and, in many cases, the bravery of immigration
officers, whose job puts them always in a sensitive position and
occasionally in a dangerous position. By and large, the officers do
that job with great skill, purpose and dedication to duty, whatever the
problems above them in the organisation, which has taken various
buffetings over the past few
years.
However,
we are all particularly concernedI know that that is true among
Conservative Membersthat the new powers given to certain
designated immigration officers by the clause need to be set out
clearly and properly. Those powers ought to be subject to proper
parliamentary scrutiny and carefully consulted on with various bodies.
Despite the Ministers repeated arguments for greater
flexibility, in the long run it is more important to get this right
than to get it in operation as fast as
possible. Also, the training should be appropriate and the inspection
regime should be not only tough but
transparent.
Those are
all very big issues. If a number of those desiderata do not happen,
then we will look back on the Bill and see it as a failure. If we find
that immigration officers have been given powers for which they are not
properly trained, that they do things that are unacceptable to the
inspector or that the various stakeholders have not been adequately
consulted or listened to over the particular powers, then the Bill will
not work and will not do what the Minister hopes. He has given us some
welcome assurances, especially on the amendments that he has said that
he will table later this week, when we will no doubt return to those
vital subjects.
I hope
that the Minister has taken on board not only the breadth of our
concerns but their depth, too. What unites the Committee is our desire
that the immigration system should improve, that those on the front
line should have the powers to do their job more effectively and that
the public should have the ability to judge whether the powers are
appropriate and whether they are being exercised appropriately. That is
quite a mountain for the Minister to climb. He has assured us that he
is aware of those problems and that he is taking steps to address them,
and I hope that he is right.
Mr.
Clappison:
I rise briefly to support the points made by my
hon. Friend the Member for Ashford and to reinforce them for the
Minister. My hon. Friend and the hon. Member for Rochdale have made
some important points, which the Minister, who has been very patient,
has sought to address. It is important that he does so to ensure that
the powers in the Bill are exercised successfully and that the
intention that lies behind them is fulfilled. I am confident that it
will be, as I have confidence in the immigration officers
themselves.
The
immigration service is a great asset. During my membership of the Home
Affairs Committee, I have visited a number of immigration posts in this
country in Dover, Heathrow and several other places and overseas in
Nigeria and Ghana. I never fail to be struck by the professionalism of
the immigration service and how its officers bring their experience and
judgment to bear upon particular situations. That experience and
judgment is used in the interests of us all, and those qualities will
assist immigration officers in discharging the powers in clause
1.
We already place a
great deal of reliance on immigration officers, and I hope that we will
value and cherish their experience and judgment, particularly in
reaching a decision about admissions to the United Kingdom and granting
visas to the UK. It is implicit in the Governments proposals
for a points-based system, which many immigration officers fear will
downgrade their role, that there will be a challenge to the immigration
services independence of experience and judgment. I will not
pursue that matter too far now, Mr. Illsley, as we will
return to it later, but it will need careful debate. The experience and
judgment of immigration officers in dealing with issues on the ground
in posts here and overseas is invaluable, and we would be foolish not
to take advantage of it.
Paul
Rowen:
I thank the Minister for contributing to a
constructive series of debates on clause 1. Opposition Members tabled
several amendments to strengthen the Bill, and he has listened to us
and promised to table amendments incorporating what we seek to do,
which is welcome. That shows the value of Committees in allowing hon.
Members to raise issues that can be taken up by the Executive. One
point of difference remainsthe amount of scrutiny that the
regulations will receivebut no doubt we will return to that
matter at a later
stage.
I welcome what
is proposed in clause 1. I believe that it will go a long way towards
strengthening and improving what goes on at our ports, improving
co-operation between the various officers and the various branches and
ensuring that our ports continue to operate to a high standard and that
immigration officers themselves are given the comfort of additional
regulation and training, which the new powers will place on
them.
Mr.
Byrne:
I start by associating myself with the remarks made
by the hon. Member for Hertsmere. I have not been in this role very
long, and I made it my first priority to travel as far round the
immigration service as I could in a short period of time. I was
fortunate to visit our visa operations in Islamabad last year and also
to travel about 3,500 miles around Britain over the course of the last
three months of last year. I have met and talked to between 2,000 and
3,000 members of the IND and the immigration
service.
As I have
said, this Bill is part of a package of measures that was very much
co-authored by the front line. I do not believe that decisions on the
detail of this kind of legislation can be made uninformed or can be
polished and finessed in an office in Whitehall, because they need the
dynamic input of people who do the job day in and day out with pride
and professionalism. I am grateful to the hon. Member for Hertsmere for
his remarks.
I thought
it might be worth sketching out why the Government think that this
clause is so important. Over the past few years, we have tripled the
number of warranted officers in the immigration service, 70 per cent of
whom are at the border. However, putting feet on the ground is not
enough if those officers do not have the power or the tools to do their
job effectively in the 21st century. This Bill, and this clause in
particular, is part of the strategy to ensure that we do not suffer
from that.
There are
already a number of provisions in the Immigration Act 1971 and the
Customs and Excise Management Act 1979 which allow an alignment of
powers between the immigration service and Her Majestys Revenue
and Customs. There is also the Terrorism Act 2000, schedule 7 to which
allows the police and customs and immigration officers to act as
officers for the purposes of the schedule. There is already some degree
of alignment of powers, and this Bill will allow us to go a step
further. Where there are particular police-like powers, this clause
allows us to equip our front line with
them.
I am very
grateful for the work of ACPO in helping to get these provisions right.
With these powers, we see a course of reform which is different from
that
sketched out by the Opposition parties. I believe
that a single border agency would be a recipe for disorder at our
border. Given the alignment of powers which is currently possible, I
fear that a single border agency would simply be an exercise in giving
everybody the same cap badge, particularly because the hon. Member for
Tatton (Mr. Osborne) has said that no new resources would be
available for the plans put forward by the Conservative
party.
This
clause is a much more sensible way forward. In the future, such powers
will be important, because the way in which we are introducing new
technology means that we can detect far more British citizens who may
be liable for arrest as they seek to move in and out of the country. I
will talk about that point in future debates, but, for example, our
e-border system, which tracks people in and out of the country, has
already produced some 9,000 alerts and some 800 arrests. It is
increasingly able to give our border security agencies the chance to
detect people, and in the future it may be that an immigration officer
is the first to encounter an individual who is of interest to the
police and who should therefore be detained while a police constable is
called.
This has been
a helpful debate. The question is how to ensure sufficient flexibility
to allow innovation to be introduced with as much speed as possible to
the front line, balanced by the scrutiny that is important for any
exercise of power. I think that we have got that balance right. The
debate is not over, because we will revisit it when we introduce
Government amendments on a single
regulator.
Question
put and agreed
to.
Clause 1
ordered to stand part of the
Bill.
12.30
pm
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©Parliamentary copyright 2007 | Prepared 7 March 2007 |