Clause
2
Detention
Damian
Green:
I beg to move amendment No. 20, in
clause 2, page 1, line 14, after
‘individual’, insert ‘on an immigration or
nationality
matter’.
The
Chairman:
With this it will be convenient to discuss
amendment
No. 26, in
clause 2, page 2, line 16, at
end add—
‘(6) For the
purposes of this section, “an immigration or nationality
matter” means an offence under the Immigration
Acts.’.
Damian
Green:
I am delighted that we have raced on to clause 2 in
two hours. I speak with feeling from my personal history of sitting on
Bill Committees. When I was a member of the Opposition team on the
Committee considering the National Minimum Wage Act 1998, we did not
finish clause 1 until the end of the third day, at which point
relationships in the usual channels rather broke down and the
Government Whip introduced a 26-hour sitting, which we all, not least
the Chairman, had to endure. I am therefore particularly pleased that
we are making better progress on this Bill, not least because that
26-hour sitting was followed by a 19-hour sitting, during which
Conservative Members spoke against a policy that my party sensibly
adopted two years later. That was not the greatest ever use of
time.
Moving swiftly on to the
amendments, having considered the designated officers, we now turn to
the key issue of the extra detention powers that they will be given
and, in particular, the times at which they can exercise them. The
amendments would limit the immigration officer’s power of
detention to use against those whom he suspects of specifically
transgressing the law on immigration or nationality issues. Like clause
1, clause 2 is widely drafted. It gives immigration officers the power
to detain anyone whom they suspect of having committed an offence or
who is subject to an arrest warrant, which gives the officers wide
powers that go well beyond immigration matters.
Amendment No.
26 would restrict the definition of immigration and nationality matters
to offences under immigration legislation. The amendments seek to
ensure that people know that immigration officers are using their extra
powers within their capacity as immigration officers, and there are a
number of reasons why that is desirable. We discussed training under
clause 1. If immigration officers have powers effectively to act as
police officers as far as the public are concerned, which is to say
that they are capable of detaining people for offences that have
nothing to do with immigration, they need to be as well trained and
accountable as police officers. I do not think that anyone has claimed that
that will be the case, for all the welcome assurances about clause 1
which we have been
given.
We have already
discussed the good job that immigration officers do, but if they are to
continue to do that job to the best of their ability, they need to be
properly focused on it. If their focus is diffused, it is likely that
they will be unable to do their job as effectively as they have in
recent years. In his closing remarks about clause 1, the Minister
introduced the subject of a border police force, which I imagine that
we will discuss throughout our debates and certainly when we reach the
new clauses. However, it seems slightly perverse that he has set his
face so firmly against that force and yet is trying to move towards it
in small ways. For example, the extra powers that he is giving to
immigration officers to make them a little more like a border police
force are not accompanied by the appropriate guidance, which they would
receive if they were full police
officers.
I hope that
the Minister paid attention to the remarks on this matter by Gareth
Crossman of Liberty. The amendments seek to address what Gareth
Crossman described as a general trend towards the devolution
“of what are essentially policing
powers towards non-policing agencies, in this case towards immigration
officers.”——[Official Report, UK Borders Public
Bill Committee, 1 March 2007; c.
118.]
He also pointed out
that
“The
Serious Organised Crime and Police Act 2005 contained provisions that
specifically set out the carrying out of arrest functions by
non-policing bodies.”——[Official Report, UK
Borders Public Bill Committee, 1 March 2007; c.
118.]
That is a development
worthy of debate in itself. If we are—as we are—going
through a phase in which society and the streets are becoming more
violent, clearly we need to be extremely sensitive about the powers
that the authorities, whether they are the police or other authorities,
have to combat that growing
violence, because those powers are likely to have to be used more often.
Equally, when it comes to passing legislation, we must be careful that
it is properly
focused. Liberty
itself made the point that there is an argument that immigration
officers should be able to exercise these powers, but if they are to do
so, then it is worth remembering one of the better traditions that we
have in this country. It is the tradition, as Gareth Crossman put
it,
“of having an
accountable, properly trained police
force.”——[Official Report, UK Borders Public
Bill Committee, 1 March 2007; c.
118.]
We all accept
that the police have exceptional powers, but equally we accept that
there needs to be proper accountability for the police. We know what
the police are supposed to be doing and whether a police constable is
exercising them well or not. If people were to turn their attention to
immigration officers, they would find it entirely acceptable that
immigration officers should have a set of powers that are quite large:
that they can detain people; that they can question people; and that
they can intrude into people’s personal lives. People will
regard that as completely acceptable, as long as the immigration
officer is pursuing their duty as an immigration officer. I suspect
that the officers themselves would welcome clarification. They want to
know that what they are doing is not only formally correct—that
is, correct de jure—but that it would be correct in the view of
the people against whom they will exercise their powers. The principal
reason for these amendments is to ensure that that is the
case.
We will come, no
doubt, to inspection arrangements in future debates. However, the
principle itself is well worth discussing; namely, that if we give
extensive powers to officers, then the people against whom they will
exercise those powers should know that those powers are being exercised
properly. On the surface, it does not seem obvious that an immigration
officer using powers of detention, and so on, against someone they
suspect of having committed an offence that may have nothing to do with
immigration is acting correctly; the immigration officer may well be
worried that that is, in some ways, improper and they can be pretty
sure that the person against whom they are exercising those powers will
think that it is improper. Therein lies the potential not only for
difficulties, but for active danger. People are more likely to react
unpleasantly and possibly violently if they feel that powers are being
used against them in an improper way, even if they will be entirely
legal, if this Bill is
passed.
These are
serious concerns about the day-to-day activities that immigration
officers will have to carry out if clause 2 is passed, and I hope the
Minister will address the amendments with the seriousness with which
they were tabled.
Paul
Rowen:
During the course of our debate on clause 1 and the
amendment which I put forward on the PACE regulations, the Minister
said that the use of the PACE regulations was perhaps not inappropriate
because the powers that were being designated to immigration officers
were not those of police officers.
The concern I have with this
particular amendment is that it does just that. As the hon. Member for
Ashford has said, we are considerably widening the powers of detention
for immigration officers. That might be appropriate in the context of
the wider debate, which we may have, on a UK border force. Given that
the Minister and the Government have set their face against that,
however, what we are in danger of here is legislative creep in the
sense that we are giving an officer new powers and then we are
broadening the powers and the framework in which those powers can be
used. My view is that
it would be far preferable if immigration officers were subject to the
PACE regulations to allow them to receive the full gamut of training
required to undertake those powers and to be aware of the effects of
what they are seeking to enforce. At the moment, an immigration and
nationality officer is just that. The training they have received is
primarily to do with immigration and
nationality.
David
T.C. Davies:
The hon. Gentleman appears to be arguing
against the powers in clause 2 because of the principle of what he has
described as “legislative creep”. Is that not rather an
interesting principle, which we would not want to apply if immigration
officers have somebody in front of them who is wanted on a serious
offence. Surely we should expect that those immigration officers should
use their power and their presence to detain that person until an
officer arrives, otherwise people wanted for offences as serious as
murder or robbery could literally be allowed to walk
away.
Paul
Rowen:
I am sympathetic to what the hon. Gentleman has
said and have not argued that officers should not be able to do that.
My point is that we are not only talking about what happens to the
person who is detained, because we also have a duty and a
responsibility to think about how these new powers will affect the
officer concerned. It is important that when an officer is given
powers, they should receive the appropriate training and be subject to
the appropriate codes of practice for the powers that they are going to
exercise.
The PACE
regulations were introduced to give the police and police officers the
certainty that they have the protection of the law in carrying out
their duties. My concern is that clause 2 is all-embracing and
wide-reaching, which may be a good thing. The hon. Member for Ashford
and I agree that we would rather discuss a UK border force than the
narrow addition that we have been talking
about.
12.45
pm
However, given
how the Bill is, we need to ensure, for the sake of consistency and the
protection of officers, that it defines the powers so that the relevant
officer and the person being detained know what they are. If we do not
do that, at some future date we will face challenges in the courts
because of the exercise of unreasonable powers by someone who does not
have training in, or an understanding of, the use of the powers. Given
clause 1, our debate on it and the Minister’s response, the
amendment is sensible, notwithstanding the fact that we may later
broaden the powers and establish a much more encompassing system at our
borders.
Mr.
Clappison:
My hon. Friend the Member for Ashford properly
seeks to ascertain the extent of the powers that we are giving
immigration officers. I have one question for the Minister about the
reference to Northern Ireland in subsection (1)(a). We do not have a
Northern Ireland Member on this Committee, so it is proper to ask the
Minister to say a few words about that reference. The explanatory notes
refer to
“the equivalent
powers in Northern
Ireland”,
but say no more
than that. Will he explain whether the Bill covers any offences
particular to Northern Ireland, as opposed to those in the rest of the
country? Will he spell out exactly how much more is covered by virtue
of the specific reference to Northern
Ireland?
Mr.
Byrne:
I have followed the debate with interest, but also,
I am afraid, with a sense of growing puzzlement and the first signs of
alarm.
The amendment
would effectively limit the powers that we propose for immigration
officers simply to immigration and nationality offences. Frankly, those
are not massively different from the powers that they already have. The
amendment would undermine the rationale for this entire group of
clauses. If we accept that the pressure on our borders may not diminish
but grow in years to come, and that the security situation that we
confront today may be with us for some time, it is important for us to
bring forward measures that give the opportunity for immigration
officers not to supplant the police but TO support them more
considerably than they can today, given the powers that Parliament has
granted them.
The
first signs of alarm come from what is beginning to look like a pattern
of behaviour. As I said, now that we have dramatically increased the
number of immigration officers—by about threefold—it is
surely important to ensure that they have the tools and powers to do
the job. Critical among the tools must be systems that allow us to pin
down people’s identities. It does not matter who stands at the
immigration control desk; if we are unable to pin down the identity of
the person presenting themselves, it will be harder than it should be
for an immigration officer to do their job. That is why we propose
systems such as biometric visas and why we shall later, I hope, come to
a full debate about compulsory ID cards for foreign nationals. Surely,
in an age of global movement when links between communities are much
weaker than they were and people move around much faster, it is more
important, rather than less, to be able to pin down and ascertain
somebody’s identity. Opposition parties propose to remove those
tools and not to allow security services, police and immigration
officers access to the kind of technology that is available. The
amendment does not propose to take away tools, but to take away powers.
My fear is that it is part of a pattern of argument that points towards
a much more toothless immigration service that will be less, rather
than more, able to secure our borders.
I want to build on an argument
made by the hon. Member for Monmouth, which involves a case where a
British national appears in front of an immigration officer who has
reason to suspect that the British national is liable to arrest. Is
that an unusual scenario? No, it is not. It may become increasingly
common in the future. I mentioned a system of electronic database
checks that is now in place. It covers 20.9 million flights in and out
of the country and 38 carriers operating from 71 non-UK ports. That
system allows us to check the names of those people who check in
against a range of Government databases and to flag alerts, some 9,000
of which have been flagged so far, resulting in 800 arrests. We made it
clear in the IND review, which my right hon. Friend the Home Secretary
published last July, that we intend to roll out the system further. We
want to use it to count people in and out of the country, which is an
ambition that I know that Members from all parties share, but it allows
us, too, to run names against a series of database checks. Scenarios
such as those outlined by the hon. Gentleman might multiply in the
future.
David
T.C. Davies:
The Minister is talking about an interesting
idea, which is that passenger lists can be cross-checked with the
police national computer to find anyone who might be wanted for serious
offences. Has he considered extending it further and cross-checking
with the Department for Work and Pensions to see how many people are
flying out of the country while in receipt of jobseeker’s
allowance or other benefits, as that would imply that they are not
seeking work as assiduously as one might
hope?
Mr.
Byrne:
An excellent point, about which we will hear
considerably more over the course of this week. I hope that by the time
we meet on Thursday I shall have considerably more to say to the hon.
Gentleman on that point.
Mr.
Jackson:
I can well understand that working in the Home
Office one gets pessimistic, but I suspect that the Minister is being
unduly pessimistic in his portrait of my motives and those of my hon.
Friends. These are merely probing amendments, because we think that the
provisions are sufficiently lax to open up a can of worms later. The
intimation in the Minister’s remarks is that he supports
profiling at points of entry into the UK. Is that his
contention?
Mr.
Byrne:
Profiling is a word that is often used and misused,
and so I am happy to engage in a debate about what precise definition
the hon. Gentleman proposes. The truth is that database technology
allows us to undertake risk assessments on particular flights, which
can guide decisions about the number of immigration officers and
whether they meet the plane at the gate rather than at the immigration
desk, for example. Such a risk assessment becomes more possible with
systems such as the one that we are using.
The scenario I wanted
to paint in respect of the point made by the hon. Member for Monmouth
was that of a flight that arrives at an airport in the UK. At
immigration control a British national is identified as being the
subject of a warrant for arrest for an offence such as grievous bodily
harm. As that person is a British citizen, the immigration officer does
not have the power of arrest under section 14 of the Asylum and
Immigration (Treatment of Claimants, etc.) Act 2004. He is therefore
unable to support the police, not supplant them, by detaining the
individual and
summoning a police constable to perform the arrest and conduct
substantive inquiries. That scenario concerns me, as I believe it
concerns the hon. Gentleman. With the roll-out of the e-borders system,
such scenarios will not diminish but multiply in years to
come. The hon. Member
for Rochdale made an important point about PACE. I return to the
distinction that I drew between the powers that we propose in the Bill
for immigration officers and the responsibilities and powers of a
constable. We have been careful in the powers that we have sought for
immigration officers. We have sought to give them the power to detain
and said that there will be an obligation to summon a constable as soon
as is reasonably practicable, and we have set a limit of three hours on
the detention possible.
The difference between the
powers of a constable and those of an immigration officer in the
situation in question is important, because a constable will undertake
the responsibilities of questioning, arrest, investigation and the
collection of specific evidence. Those responsibilities are all
appropriately covered by PACE and the police have to put in place a
comprehensive infrastructure to exercise them. I mentioned recording
facilities. I do not believe that it would be a proportionate use of
PACE to extend its scope to encompass the responsibilities and powers
of immigration officers that we are setting out in the Bill. It would
entail substantial investment, probably on the part of ports, most of
which are operated in the private sector, to provide PACE-like
facilities at ports up and down the country.
That said, is it important to
ensure that adequate training is provided for immigration officers to
conduct and execute the powers in the Bill? Yes, of course, and that is
why we had the debate on clause 1. Is it important that there is
scrutiny and oversight? Yes it is, and that is why I set out that there
will be the triple check—Her Majesty’s chief inspector of
prisons, independent monitoring boards and the prison and probation
services—covering detention facilities on the one hand and the
new single regulator on the other. It is why we believe that there may
well be immigration functions that it is important for the IPCC to
cover and why we introduced section 41 of the 2006 Act. It is why we
will conduct a public consultation on precisely which functions
performed by the immigration service it is appropriate for the IPCC to
cover. I am concerned that the amendment would not strengthen the
immigration services; I believe that it would weaken it.
I ask for the
indulgence of the hon. Member for Hertsmere and ask whether I can write
to him, detailing at some length the Northern Ireland
provisions.
Mr.
Clappison:
I am grateful to the Minister for that
response, and I am satisfied with it. To clarify the point that I wish
to establish, what is being covered in respect of Northern Ireland that
will not be covered for the rest of the
UK?
Mr.
Byrne:
I am grateful to the hon. Gentleman for that
clarification.
The amendment might not take us
forward and might instead take us backward. I understand perfectly the
real tenor of its purpose—to explore whether sufficient
oversight arrangements will be in place for us to ask for, and
exercise, the power in question. I believe that there will be. I accept
that Opposition Members will not be completely satisfied on that point
until we have had our debate on the single regulator, but with that
ahead of us I hope that the hon. Member for Ashford will withdraw the
amendment.
Damian
Green:
I am sorry that the Minister has said that he is
beginning to be alarmed. I am sorry if I have alarmed him. By contrast,
his response rather cheered me up. The substantive part of his
response—
It
being One o’clock,
The Chairman
adjourned the Committee without Question put, pursuant to the Standing
Order.
Adjourned
till this day at half-past Four
o’clock.
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