 House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates UK Borders |
UK Borders Bill |
The Committee consisted of the following Members:Emily
Commander, Committee
Clerk
†
attended the Committee
Public Bill CommitteeTuesday 6 March 2007
(Afternoon)
[Mr. David Amess in the Chair]UK Borders BillClause 2Detention
Amendment
proposed [this day]: No. 20, in clause 2, page 1, line 14, after
‘individual’, insert ‘on an immigration or
nationality matter’.—[Damian
Green.]
4.30
pm
Question
again proposed, That the amendment be
made.
The
Chairman:
I remind the Committee that 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 (Ashford) (Con): I repeat the new welcome that we
decided to give to the Chairman, Mr. Amess, as we move on to
the traditional phase of the
Committee.
The
Minister said this morning that I was alarming him with this group of
amendments, to which I responded that he had cheered me up with his
response to it. That is because in addressing the powers that he wanted
immigration officers to have, in particular the necessity for the
powers to extend beyond immigration matters and offences under the
immigration Acts, he made an extremely cogent case for having a border
police force standing at the border as our first line of defence. I can
guarantee that I will hear quotes from what he said this morning coming
from my own lips in the months to come as the debate
continues.
In the
wider scheme of things, the Minister is right. There will be people of
criminal intent coming through our borders. There already are, and we
want people there with the training, capability and specialist skills
to enable them to be even more effective than our current immigration
officers. The Government implicitly agree that the current controls at
the border are not effective enough; otherwise, they would not propose
in the early clauses of the Bill that the immigration officers should
have extended powers. We accept that and we are glad that the
Government admit it. The difference between us is simply that we wish
to make the measures more all-embracing and coherent. I am sure that we
shall return to that issue
later.
The
Minister’s other arguments were less strong. It seems to me
perfectly sensible—I do not know why he is alarmed—that,
as long as we have immigration officers, they should be focused on
immigration matters. That is part of the problem with having officers
with immigration
officer powers at the border. He has made a cogent case, one that we
wish to argue in the later clauses of the Bill, and in those
circumstances it would be churlish of me not to withdraw the amendment.
I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
David
T.C. Davies (Monmouth) (Con): I beg to move amendment No.
1, in
clause 2, page 2, line 8, leave
out ‘three’ and insert
‘24’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 38, in
clause 2, page 2, line 8, leave
out ‘three’ and insert
‘eight’.
David
T.C. Davies:
This Bill Committee has been an interesting
experience for me. It is one of the first that I have served on, so I
tread warily. I have noticed a bit of consensus on some of the general
principles, one of which is allowing immigration officers to detain
people under certain circumstances. I question whether three hours is
long enough for an immigration officer to detain someone. In a busy
port such as Heathrow or Gatwick, a police officer will be on the spot
within minutes or seconds if they are not already there, so it will not
be an issue in the places that we tend to think of; but in other ports
there is not always a 24-hour police presence.
I am concerned that if the
situation that we discussed were to arise, in which it became apparent
to an immigration officer that somebody before them was wanted by the
police, whether under warrant or in other circumstances, it might take
longer than three hours for a police officer to arrive. The police tend
to be fairly reactive; they are not always present in the numbers that
we would like. I speak from experience as a currently sworn-in special
constable. I imagine that in most cases three hours would be long
enough, but I can envisage circumstances, in a remote area with police
already out on various calls, in which it would not be. Therefore, I
tabled an amendment that “three hours” be replaced by
“24 hours”, on the basis that that would make absolutely
certain that under no circumstances would somebody who was wanted for a
serious offence escape.
However, I am
open to suggestions on the amendment. My hon. Friend the Member for
Ashford has spoken eloquently and sagaciously on many matters relating
to the Bill, and he has suggested that eight hours, rather than 24,
might be enough. I am open to persuasion on that point. I merely
question whether three hours is enough and I hope that, given the
consensus that we are starting to see on some measures in the Bill, the
Government would also agree that three hours might be insufficient time
in certain circumstances.
Mr.
Stewart Jackson (Peterborough) (Con):
Is
my hon. Friend aware of the findings of the Select Committee on Home
Affairs in 2001 in its report, “Border Controls”, which
specifically draw attention to the weaknesses of the current situation,
specifically the lack of a coherent, statutory border agency? The
Committee said that there was a lack of access to other
agencies’ databases and that some officers on duty did not have
full powers to carry out necessary border control functions on
behalf
of others. Would that situation not be remedied by the ability to hold
people for longer, perhaps across duty
rosters?
David
T.C. Davies:
My hon. Friend makes an important point. Of
course, there is one other matter that should be addressed, and that is
that the longer somebody is held by an immigration officer, the more
likely it is that something may arise that could cause that person to
make a claim—vexatious or otherwise—against the
immigration and nationality directorate. That is why I was absolutely
delighted when the Minister said, about a week ago, that he would
shortly provide me with details on the amount of compensation that has
already been paid out by the IND. I tabled the written question almost
a year ago, and I thought that my staff and I would have to hold a
birthday party for it, as it is yet to be answered. I look forward to
seeing the details very shortly.
Mr.
James Clappison (Hertsmere) (Con): I congratulate my hon.
Friend on tabling the amendment; he has raised an important subject and
I am sympathetic to the arguments that he has advanced.
The onus is
on the Minister to explain to us the genesis of the period of three
hours. I note, for a start, that that is a maximum period. Looking at
the Bill, it is obviously hoped that the police will come as soon as
possible and take into their detention the person who has been detained
by the immigration officers. However, I wonder why we need to have a
maximum period of three hours. The Minister must explain where this
period of three hours came from. Did it come from the Police and
Criminal Evidence Act 1984, in order to align the powers of immigration
officers with those of police officers? Did it come about as a result
of consultation? Where exactly has the period of three hours come from,
bearing in mind that it is a maximum figure and one would naturally
want to give immigration officers as much flexibility as is reasonable
in such circumstances? Obviously, balances must be struck, but if we
are designating immigration officers, training them and, as was
described this morning, going to all the trouble that we are going
to—apparently rightly—one would ask why this limit of
three hours has been set. Perhaps the Minister would also explain what
will happen if immigration officers hold a person for three hours and a
police officer is not able to attend within that period of three hours.
We all know about the many demands that are made on the police these
days, so we need to hear from the Minister as to what would happen in
such circumstances. The onus is on the Minister to explain where the
figure of three hours comes from.
Damian
Green:
I shall speak to amendment No. 38. I was pleased
when my hon. Friend the Member for Monmouth said that he was
persuadable, as it is difficult enough to persuade Ministers to accept
amendments without the added problem of trying to persuade my hon.
Friends to accept them.
Fundamentally, we seek to
achieve the same two things: first, to probe and question the Minister
as to why three hours is the correct maximum time to allow for
detention by immigration officers, and secondly to suggest
alternatives—24 hours in my hon. Friend’s case and eight
in mine.
The points
that have been made are valid and it is worth exploring what will
happen in practice, particularly at smaller ports. The Minister will be
as aware as anyone that in the criminal underworld that is involved
with illegal immigration, trafficking and so on, it is a given that it
is easier to get people into the country through smaller ports and
airports than through Heathrow, Waterloo or Gatwick—the big
centres through which most people go, which have more people and often
newer technology. Given that, it seems overwhelmingly likely that,
particularly in some of the more remote ports, a period longer than
three hours will be necessary, not least in the perfectly plausible
circumstance of many people who need to be detained arriving at once.
That sort of thing would rapidly become known about and if it happened
once, it would happen again. The people traffickers and smugglers would
know that it was what to aim
for.
A
lot of my complaints about the Bill and a lot of my amendments are
attempts to put something concrete in the Bill so that not too much is
left to regulations that we have not yet seen and that Parliament
therefore cannot scrutinise properly. I am puzzled as to why, in one of
the few parts of the Bill in which the Government commit themselves to
something—the limit of three hours—it does not seem
adequate to perform the function, which the Minister and all of us on
the Committee want it to perform, of allowing the designated
immigration officers to do their job properly. I agree with my hon.
Friend the Member for Hertsmere that during the various consultations
on the Bill and in the course of the debates on it in the House, we
have had no sensible indication of why a period of three hours was
chosen.
It is not
just a case of there being fewer immigration officers in the more
distant and smaller ports; the local police forces in such areas are
likely to be more stretched. To continue my litany of plausible
examples, it would not be too difficult for somebody who was organising
a major people-smuggling operation also to organise a normal criminal
incident that would call away large numbers of the local police so that
there could not be anyone available within the three hours. The
provision would therefore not work. An equally likely scenario is that
a large number of suspects would be detained and all be awaiting the
attention of one constable, or maybe two, at the same
time.
I hope that the
Minister will not use the argument that he does not want suspects to be
detained for too long. He and I might not have participated from the
Front Benches in the debates in question, but our colleagues have
participated in many debates in the past 12 months in which, by and
large, we have been less keen than the Government on locking people up
without charge for long periods. I know that the Minister would like to
lock people up for 90 days, but we have managed to keep that down to 28
days so far. I urge him not to use a civil liberties argument about the
difference between locking someone up for three hours and doing so for
eight hours, as that would be inconsistent with everything that the
Government have argued in this field in recent
years.
I hope that the
Minister will reconsider the matter. He must convince the Committee
that a three-hour period is a practical solution, but it does not seem
so to
me. There will be a range of views on what the practical solution might
be but, frankly, three hours seems too
short.
4.45
pm
John
Hemming (Birmingham, Yardley) (LD):
I
shall perhaps take a slightly different angle. We are considering a
power of arrest without even reasonable suspicion. When a constable
arrests somebody there has to be a reasonable suspicion. In this
instance it is just on the basis of what someone thinks, regardless of
whether there are reasons.
David
T.C. Davies:
When a constable stops somebody he will often
run a check on that person on the police national computer and if that
check comes up as “wanted on warrant” he will arrest that
person. From what I can understand, the Minister has said that
something similar would happen in an airport. The details will be put
through and if the information comes back “wanted on
warrant” the immigration officer will make an arrest. What does
he think is different about
that?
John
Hemming:
The words in statute are
important. The words used for constables are “reasonable
suspicion”. Here it is “thinks”. That does not
require reasons. They may just “think”. There is an
important distinction there. Which way should it be or how many hours
should apply? There are circumstances where immigration officers would
need to arrest somebody and await a constable. It would be concerning
if, having dialled 999, one had to wait eight hours or 24 hours, but I
am very interested to hear the Minister’s response on this
because our responsibility is also to protect people against the
arbitrary use of state power; and here we are giving someone
potentially, according to amendment No. 1, the arbitrary power to
arrest somebody for 24 hours without even a reasonable suspicion. That
is obviously something that we should not
do.
Mr.
Jackson:
Not that long ago, the Government sought to do
the same for 90 days—90 times as long. But that is a different
issue and I will not go down that particular avenue.
I have a question for the
Minister; I would appreciate a straightforward answer, which I am sure
I will get. It seems to me that the question is, why do we have to have
these powers exercised as standardised powers? As I understand it, they
arise from section 24A of the Police and Criminal Evidence Act 1984, as
amended by the Serious Organised Crime and Police Act 2005. My
understanding is that the standardisation of the arrest powers are
similar to those for a police community support officer. My question
is, given the significant threat that the Home Secretary and his
Ministers have mentioned over many months—the volume of people
trafficking and other issues—why are these powers so limited and
why are the Government not willing to be a little flexible on this
vital issue?
The
Minister for Immigration, Citizenship and Nationality (Mr.
Liam Byrne):
May I add my words of
welcome, Mr. Amess, and say how glad I am to serve under the
constitutional normality of your chairmanship this afternoon? I look
forward to the rest of the day.
The hon. Member for Ashford is
very wise to adopt the tone that he has struck in relation to his hon.
Friends. There was a very memorable interventionby the hon.
Member for Monmouth from his own Front Bench during the course of
Second Reading. I know that the process of accountability within the
Conservative party is robust and strong, as it is on this side of the
House. The hon. Member for Ashford is well advised to strike the pose
that he has this afternoon.
May I start with a puzzle that
was working through my mind as I listened to the valuable contributions
to the debate on this amendment? In the amendment that has just passed
we had an interesting debate about how we should be seeking to strip
powers from immigration officers and link, for example, their power to
detain people to people who might be suspects in offences relating to
immigration and nationality. Now we are veering the other way and
asking whether it would be more appropriate to take a different path
altogether and dramatically extend some of those
powers.
Let me try to
pick up a few of those arguments. If I can offer one word of
reassurance to the hon. Member for Ashford, I will not be deploying any
of the arguments posed by Liberty in its briefing and I should be
grateful if he would pick me up if I start veering towards that
difficult terrain.
I
start with the contribution of the hon. Member for Birmingham, Yardley.
It is not without precedent to equip those working with or for the
immigration service with the power to detain people. In the debates on
the Immigration, Asylum and Nationality Act 2006, especially on
sections 40 and 41, we discussed whether it would be appropriate for
authorised search officers to be provided with the power to detain
people pending the arrival of an immigration officer. The Liberal
Democrats’ position was to oppose it. There is a parliamentary
precedent; whether a period of three hours is a good or a bad thing has
had the scrutiny of the House.
John
Hemming:
I am not disputing whether there is a substantial
argument for having a temporary power of detention from time to time.
My point is that the Bill does not state that there need to be reasons
to believe; the word in the clause is “thinks”. It is a
technical point.
Mr.
Byrne:
I am grateful for that clarification. This
morning we discussed some important points of detail that are germane
to the arguments advanced by the hon. Gentleman. First, we are not
asking for the power of arrest with regard to British citizens, which
picks up some of the points made by the hon. Member for Peterborough.
These are not arrest powers; they are powers of detention pending the
arrival of a constable.
We had a long debate
about the period of three hours. I have some sympathy with the hon.
Members for Monmouth and for Peterborough because the position that the
former outlined in his amendment was precisely my starting point in the
debates during the development of the Bill. My original instinct was to
seek quite wide powers of detention. Two or three arguments were
deployed to persuade me that three hours was the right approach. First,
it was argued that
if we were to propose a period of three hours and posit it being
extended to eight hours or 24 hours, we would quickly encounter an
argument that the protections we proposed in the Bill would be
inappropriate, because to detain someone for 24 hours would be
tantamount to arresting them.
If we were to equip immigration
officers with that kind of power, the House would rightly ask for the
PACE protections that are in place for police officers to be brought
into being for immigration officers in exercising the powers in the
Bill. As I said earlier, that would entail the implementation of a
different regulatory regime and require ports up and down the country
to invest, potentially substantially, in providing PACE facilities. I
thought that that was a reasonable
argument.
The
contribution that persuaded me, however, was the view of the police and
the immigration service. The evidence given last week by Tony Smith,
director of border control, was helpful. The subject has been debated
to some extent; we already bring together those agencies that are
responsible for providing border security in a group called the border
management programme. We are lucky to have an excellent representative
from the police on that board. It was the view of the Association of
Chief Police Officers and the immigration service that three hours was
about right. When I am given such clear arguments by the immigration
service and the police, I think I should listen to them.
In practice, we see three hours
as the outer limit. We make it clear in the Bill that there is an
obligation on immigration officers to summon a police constable as soon
as is reasonably practical because the police are able to exercise the
power of arrest, conduct investigations and so on.
At three hours, we are setting
a time that we believe is about right, and it has the support of the
police,the Association of Chief Police Officers and the
immigration service. On the basis of the advice given to me, I was
persuaded. I hope that I have persuaded the Committee to the extent
that it will see fit to allow the amendment to be
withdrawn.
Damian
Green:
I am not convinced by the Minister’s
argument, because there was no argument. He said that he started at 24
hours—a splendid consensus between my hon. Friend the Member for
Monmouth and the Minister, which I am sure we all note and cherish. He
was then persuaded to come down to three hours by ACPO and the
immigration service. That is interesting. However, he gave us none of
the arguments that ACPO and the immigration service had used on him. It
was an old-fashioned appeal to authority rather than a rational
argument. The arguments of ACPO and the immigration service may have
been fantastically convincing, but none of them have been shared with
the Committee, so we are no further forward than before the Minister
started speaking.
The Minister
made the reasonable point that some of our amendments this morning
would have reduced the power—and, he suggested, the
effectiveness—of immigration officers, and he rejected them on
those grounds. We are now trying to make immigration officers more
effective, and he is rejecting that, too—and, frankly, with not
much rational argument. I urge him to consider
the matter again, because various Opposition Members set out perfectly
plausible scenarios in which three hours would not be
enough.
I am sure
that none of us wants to read in the newspapers in years to come of
people being held at ports who had to be released because a police
constable was not available. The Minister will be more aware than
anyone of the current spate of newspaper stories about illegal
immigrants being caught by the police and put on trains, or let go in
some other way, with the injunction, “Please go and report to
the nearest immigration reporting centre.” And—surprise,
surprise—few of them turn up. One can see that the Bill might
easily lead to a repetition of that sort of embarrassing disaster for
the Government.
I
urge the Minister to reconsider the matter. We are trying to help him
avoid an obvious elephant trap.
Paul
Rowen (Rochdale) (LD): May I apologise, Mr.
Amess, for missing the start of the sitting? I had to attend my Select
Committee in order to raise a question.
My party does not support the
amendment. We believe, as the Minister suggests, that the powers of a
three-hour limit are more than adequate given that we are asking
immigration officers only to detain someone and then call the police.
On most occasions, the police will be on site and will arrive fairly
speedily. I cannot envisage a situation in which an immigration officer
will detain someone for longer than that; we are not talking about such
people being questioned or interrogated.
The provision
is designed primarily to deal with the al-Qaeda suspect who leaves the
country in a burqa. If an immigration officer suspects someone of
attempting to slip out of the country, this power will allow them to be
detained. That is right and proper. If we go beyond three hours, we
come back to the earlier argument about whether we should have a border
force or whether we should continue to have a separate police force and
immigration service. I might agree that a border force would be more
effective, but that is not what we are discussing. Given that we are
dealing with a very narrow clause about the powers of designated
immigration officers, three hours is more than
adequate.
5
pm
Mr.
Byrne:
I am grateful to the hon. Member for Ashford for
having pointed out the elephant traps. In trying to steer my way around
them, I shall listen to him with ever greater care over the days, if
not weeks and months, to come. He rightly characterised my argument as
an appeal to authority, which it
is.
We often hear
protracted arguments from Opposition Members about why Ministers should
trust front-line professionals more. In my previous role as a social
care Minister, I often listened to the hon. Member for South
Cambridgeshire (Mr. Lansley) talking at great length about
why Ministers should prescribe less and listen harder and in greater
detail to front-line professionals, and there is some merit in a
critique that says that Ministers should not try to prescribe
operational activity to the nth degree. This morning, we celebrated at
some length the contribution that our immigration officers make to our
border security, and their reputation for professionalism is well
justified.
On the one
hand, the immigration service and ACPO have both argued that any
extension of the power of immigration officers to detain individuals
for longer than three hours would be to creep towards a power that is
tantamount to the power of arrest. That would, rightly, trigger calls
for PACE-like protection and investment by ports in PACE facilities. On
the other hand, it is legitimate to ask whether a constable can be
summoned within three hours. On that, I defer to the judgment of
colleagues in the police forces, who understand what we are trying to
do and the capabilities that we are trying to put in place at the
border.
We have been
extremely grateful for the input of the police in programmes such as
e-borders. Just outside Heathrow, at Status park, we have a very
successful joint-working operation involving Her Majesty’s
Revenue and Customs, special branch, the police and the immigration
service that processes the data that we screen from flights. Even in
the short history of that operation, those data, which we talked about
this morning, have provided some 8,000 or 9,000 alerts and resulted in
some 800 arrests. The police are very familiar with the kind of
capability that we are putting in place. In ACPO’s judgment,
where immigration officers exercise their powers of detention at the
border, three hours is adequate to summon a police constable. In fact,
if anything, that is the outer
limit.
Therefore, my
appeal is to authority. If the police tell me that they are confident
that they can work within the power, I accept their
judgment.
Mr.
Clappison:
I have heard the Minister’s explanation,
which I know that I asked for. Is he telling us that the police are
confident that they can get there in every case, bearing in mind that
that is a maximum? Can he answer the question that I put to him earlier
about what will happen in the case of a suspect who is dressed in a
burqa, or, as the hon. Member for Rochdale has suggested, something of
that nature, and the police cannot get there within three hours? What
will be the legal
position?
Mr.
Byrne:
As the law stands, an immigration officer would be
in breach of the law if he were to detain somebody for longer than
three hours, which is why I needed persuading that three hours is long
enough. However, I accept the representations from ACPO that three
hours is the right margin within which an immigration officer should
seek to summon a police constable to conduct an arrest or
investigation.
David
T.C. Davies:
You will know, Mr. Amess, that I
am renowned for my moderation and for seeking a third way whenever
there is one. Having listened to the excellent contributions by the
Minister and my hon. Friend the Member for Ashford, whom I admire
greatly, from the Front Bench, I have come to the conclusion that
perhaps there is a happy medium. A third way would be for me to
withdraw my amendment suggesting 24 hours and for all of us who believe
that we should do our utmost to prevent terrorists or other criminals
escaping the clutches of immigration officers to support my hon.
Friend’s amendment of eight hours.
The
Chairman:
Order. I am trying not to sound pompous, but it
is usual that if a Member has tabled an amendment that is not the lead
amendment, when they speak, as in Mr. Green’s case,
they should indicate to the Chair that they might press their
amendment. However, on this occasion we will
proceed.
Amendment, by leave,
withdrawn.
Amendment
proposed, No. 38, in clause 2, page 2,line 8, leave out
‘three’ and insert
‘eight’.—[Damian
Green.]
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 4, Noes
10.
Division
No.
3
]
AYESNOES
Question
accordingly negatived.
Damian
Green (Ashford) (Con): I beg to move amendment No. 39, in
clause 2, page 2, line 13, leave
out
‘designated’.
No. 40, in
clause 2, page 2, line 15, at
end insert—
‘(aa) detain the
individual for not longer than two hours whilst waiting for a constable
or designated immigration officer to attend,
and’.
Damian
Green:
The amendments to this clause can usefully be
divided into those that seek to focus powers so that they are
appropriate and those that seek to extend powers, where we think that
that is appropriate. This amendment seeks to extend powers so that they
are appropriate. The argument for this amendment has been strengthened
by the rejection of the previous amendment. What I have said about
potential elephant traps still applies, and I hope that those who voted
against the previous amendment will not live to regret it if something
horrible happens in a few years’
time.
Amendments
Nos. 39 and 40 would extend the possibility of immigration officers
pursuing individuals. Amendment No. 39 would remove the word
“designated”, so that any immigration officer may return
an individual who is trying to leave a port, and the Committee will
appreciate the evident practical merits of that. It is right and proper
that appropriately trained immigration officers are the only ones given
the power to detain people, but that situation is very different from
one in which someone is trying to leave a port. All that is being asked
for is the
power to pursue and return an individual who has already been identified
and attempted to be detained. It would clearly be nonsense if somebody
were able to slip through the net just because a designated officer is
not available, or—I suspect that this is more to the
point—if enough designated officers are not
available.
That point
returns us to the issue of smaller ports and airports, where, I
imagine, only one designated official, if any, will be available in
many cases. This morning, the Minister told us that roughly 25 per
cent. of immigration officers will be designated. It therefore seems
highly likely that one designated official at most would be available
in many ports and airports at certain times of the day or night, which,
if somebody fled, would leave that individual in the invidious position
either of leaving their post or of pursuing somebody that they
suspected of committing an offence. Amendment No. 39 would make it less
likely that that invidious choice would have to be
made.
Frankly, I again
invite the Minister to consider what would happen in practice. What if
he—or a successor, given the rate of change in his
job—were forced to answer to the House about a potentially
dangerous criminal who was at large because they could not be pursued
out of the port or airport from which they had fled, because there was
not a designated immigration officer available when perfectly capable
immigration officers who did not happen to be designated were
available? I suspect that he or his successor would find such an
explanation rather uncomfortable and rightly so, because such an event
would be
nonsense.
Moving on,
amendment No. 40 again takes up the practicality argument that we
discussed in our last debate. It inserts the capacity to detain
an
“individual for not
longer than two hours whilst waiting either for a constable or a
designated immigration officer to
attend,”
which clearly
gives any immigration officer the power to detain somebody who may have
been stopped by a designated immigration officer and who has tried to
leave the port. Obviously, amendment No. 40 follows on from amendment
No. 39. We are discussing a practical point: if we allow any
immigration officer to pursue someone who is trying to flee, they must
have a short space of time in which to detain that person after
catching and returning them, otherwise there would be a deeply
ridiculous situation in which the detainee could walk off again, which
would be
undesirable.
If we
take the Minister’s word, one can get a policeman anywhere in
this country at any time of day or night within three hours. That was
the proposition he advanced in response to the previous amendment, so,
a fortiori, one can find a designated immigration official anywhere
within two hours. That is all we seek to achieve with the two
amendments. They are practical amendments, which would avoid potential
disasters and stop potentially dangerous criminals getting out on to
the streets. In that spirit, I commend the amendments to the
Committee.
Mr.
Clappison:
I agree with my hon.
Friend’s observations, which it is proper to make. We are
discussing a permissive power for a designated immigration officer to
pursue and return an individual after a different immigration officer
has detained or attempted to detain the person concerned. In the light
of that, are there any circumstances
in which an undesignated or non-designated immigration officer could
pursue or return an individual in the manner contemplated in subsection
(5)? If so, will the Minister spell them out to give us an
understanding of the legal
position?
5.15
pm
Paul
Rowen:
We are very happy with the amendments. We believe
that the powers of the designated officer are the key issue. Clearly,
if someone attempts to enter the country unlawfully, no one—not
just immigration officers, but citizens—should attempt to assist
them. The proposals are sensible and take account of the fact that in
many small ports, there might not be many designated officers around.
If that were the case, and someone attempted to abscond, anyone at the
port should have the authority to stop and detain
them.
Mr.
Byrne:
I am, perhaps unwisely, trying to reconcile in my
own mind the debates from this afternoon and this morning. I am having
one or two difficulties, but perhaps they will become easier towards 7
o’clock. This morning we had an extremely useful, constructive
and, I thought, worthy debate about why it is so important to have in
place a number of checks and balances for when the Home Secretary seeks
to designate immigration officers in respect of the powers set out in
the Bill.
In
particular, hon. Members from all parties underlined the point that it
is extremely important to ensure that individuals have the right level
of training. For example, arguments were advanced in favour of codes of
practice, subject to affirmative resolution in the House, prior to
implementation of any of those powers. Generally, the thrust of the
argument was that we need quite a high hurdle for immigration officers
to jump before they are allowed to exercise the powers that we are
seeking to introduce in clauses 1 to 4. However, where hot pursuit is
concerned, the amendments would throw all those protections out of the
window.
The clauses
set up an operational situation in which only designated officers
deemed by the Home Secretary to be “fit and proper” and
to have had the right training are allowed to pursue people out of
port. The amendments would allow anyone to do that. We must remember
that our larger ports, as well as many of our smaller ones, have
detention facilities and specially trained detainee custody officers
responsible for ensuring that people remain in custody suites. It is
probably right to suggest that those seeking to run away from a port
are trying to resist an immigration officer’s power of
detention. It is therefore important that only officers designated by
the Home Secretary, having satisfied him that they are “fit and
proper”, can undertake that
role.
John
Hemming:
The Minister is perhaps losing the
practicalities thread. Part of the training involves how to decide
whether there should be a power to detain, and here we enter the world
of practicalities. When somebody does a runner, it is a question of who
can run after them. Let us imagine a situation in an airport or port in
which the immigration officer says, “I detain
you”, but that person decides to run. Under the Bill, everyone
else must stand there and do nothing. The point of the law is to give
people the authority to act. Once the decision has been properly made
by a trained person, it is entirely appropriate for any citizen to
assist in ensuring that people are operating in accordance with the law
on this point. Otherwise, once the decision has been taken, everyone
has to stand away while the designated officer huffs away trying to
chase somebody.
Mr.
Byrne:
I am following the hon. Gentleman’s argument
with some interest, but I am finding it difficult to reconcile it with
the argument advanced this morning by the hon. Member for Rochdale, who
made great play of the fact that only designated officers—those
who have satisfied that Home Secretary that they are fit and proper
people—should be blessed with this power of detention in the
first place.
Two
arguments have been advanced. The first was well expressed by
Opposition Members. Unless proper training is in place for officers
with regard to executing these powers, they could be placing themselves
in considerable danger. That is an unreasonable thing to ask of
immigration officers. Secondly, some training is needed. In answer to
the hon. Member for Hertsmere, I point out that immigration officers
who are arrest-trained may pursue and arrest foreign nationals under
the Immigration Act 1971. Under schedule 2, detainee custody officers
can also act on those who are seeking to escape from lawful
custody—a custody suite in a court.
That underlines the point that
those who can undertake hot pursuit, as it were, are those who have
arrest training. That is precisely the kind of training that we would
see as part and parcel of the designation process, leading to a
designation of an officer under these powers. It would be a mistake
that cut against all the arguments that Opposition Members advanced
this morning to say that only designated officers can detain an
individual at a port, but that anyone at all can undertake a hot
pursuit. Those who are fleeing from a port are much more likely to be
difficult customers to stop.
John
Hemming:
Let us imagine a port where someone is coming
through and the designated officer tells him to stop. If I stop the
person doing a runner, I will be guilty of assault because I will have
stopped him unlawfully. That is essentially what the law implies as it
is drafted at the
moment.
Mr.
Byrne:
The hon. Gentleman is not helping me to reconcile
his arguments with those of his hon. Friend this morning. The argument
advanced this morning, with which the Government agree, is that if we
are asking for additional powers to detain, in this case British
nationals, only those who have satisfied the Home Secretary as fit and
proper and so have undertaken certain types of training provided by
Centrex should be put in that position. To put others in that position
would not only incur risks to the immigration officers themselves, but
could involve harm to those around them.
Mr.
Clappison:
For those of us who do not have the relevant
section of the immigration rules or the 1971 Act at our fingertips,
will the Minister explain the powers of a restraint officer? Will he
compare the restraint officer’s powers with those that are
outlined
here?
Mr.
Byrne:
The nub of schedule 2 of the 1971 Act—the
hon. Gentleman will forgive me for not having memorised the details of
the Act, as it was passed not long after I was born—is that
those who are arrest-trained are able to pursue and arrest foreign
nationals. The point that I want to underline is that there is an
inconsistency between the Committee’s argument that only those
who have satisfied the Home Secretary as fit and proper people are able
to detain people at a port, but that anybody can then undertake hot
pursuit. Those who are fleeing from a port are more rather than less
likely to be individuals who will create difficulties. Therefore, if
anything, we should argue that there is an even stronger case for
saying that a designated officer should be the only officer who should
be given that
task.
The hon. Member
for Ashford made an entirely reasonable point in the later stages of
his argument. It is essential that the immigration service understands
what the right number of designated officers should be at different
ports. We heard Tony Smith, the director of border control, say last
week that he thought that in the first instance about 25 per cent. of
immigration officers should be designated. That is across the entire
service, which is not, of course, to say that 25 per cent. at every
port should be designated, so I am sure that the hon. Gentleman has a
point in suggesting that it might make more sense for 100 per cent. of
the immigration officers to be designated at some smaller
ports.
Larger ports,
such as Heathrow, have quite robust and extensive detention facilities,
so being able to ensure that a greater fraction of immigration officers
is designated and able to undertake hot pursuit at smaller ports may be
a sensible and reasonable operational
consideration.
Mr.
Jackson:
Given that the Minister has
been referring to discrepancies in people’s arguments, I am
surprised that he expects the Committee not to see the difference
between an immigration officer quite properly seeking to verify the
bona fides of someone entering the United Kingdom through a port and
using the legal powers contained in this Bill to detain them, which is
a proactive act, and a member of the immigration and nationality
directorate, an immigration officer, seeking to apprehend someone who
has wilfully escaped that port. There is a difference, and I am
surprised that the Minister cannot see it. That is reflected in the
amendment.
Mr.
Byrne:
I think that that rather misrepresents the argument
that I was seeking to make, but perhaps I should apologise to the
Committee if I am not making the point clearly enough. This morning, I
thought that we established the principle that if somebody was to be
designated with the powers that we seek under this Bill, they should be
able to jump certain hurdles and satisfy the Home Secretary that they
are “fit and proper” people. We also envisage extensive
training as part of that process of becoming a fit and proper person.
Those conditions must apply for somebody to have the power to detain
someone at a port.
I would have thought that the
process of pursuing someone seeking to flee from a port was, if
anything, not less dangerous, but more so than the situation that an
immigration officer might encounter when seeking to detain somebody in
the port, so there is a greater premium, not a smaller one, on making
sure that officers who are undertaking hot pursuit have the right level
of training.
John
Hemming:
Where the Minister is perhaps
getting a little confused is in the realities of the situation. If
somebody was trying to escape from a corner of this room and I, as a
citizen acting in good will, shut the door to prevent them from
leaving, that would be wrongful imprisonment unless I was empowered by
law. The amendment would give people the ability to assist designated
immigration officers in such circumstances. Without those powers, they
are prevented by law from offering assistance. What we are arguing is
not the same as saying that it is their job to chase people; it is
saying, “Well, if you happen to be standing there and the
circumstances permit you, you can assist in the pursuit.” We are
not saying, “Now it’s everybody’s job to do
it”, but seeking to give people a power in law to act to assist
the designated immigration officer.
Mr.
Byrne:
I regret that the hon. Gentleman was unable to
listen to the hon. Member for Rochdale this morning, as that would have
helped him in the argument he is seeking to advance this afternoon. He
is calling for immigration officers untrained in arrest training to be
given the power to place themselves in harm’s way to detain
someone who is fleeing a port. That is a completely inappropriate level
of protection and could be a recipe for quite dangerous circumstances. If
we are asking immigration officers to undertake dangerous tasks, as hot
pursuit surely must be, it is only appropriate that we seek to ensure a
minimum level of safeguards. That minimum level should be the process
that we are suggesting an officer goes through in order to become
designated as a fit and proper
person.
Mr.
Clappison:
I share the Minister’s concern for the
safety of immigration officers and the view that, as part of ensuring
that safety, they should receive proper training. We are considering a
permissive power, however, and I am concerned about putting the
officers in a safe position in every conceivable situation. May I
invite him to consider a practical situation that may well arise in a
small port with only one immigration officer designated? Such an
officer may have colleagues who are not designated, and as the Bill
stands, if a person whom he wanted to detain sought to leave and he
thought as a designated officer that it was his duty to go after that
person, his colleagues would not be able to go to his assistance unless
they were designated or had this other restraint power that the
Minister has mentioned. That is my worry about the individual
designated officer, and I would like the Minister to address that
particular situation.
Mr.
Byrne:
I am grateful to the hon. Gentleman, who makes an
entirely reasonable point. There are two potential responses to the
scenario that he poses. The first is to throw all the safeguards out of
the window and say that anybody who works for the immigration
service should have the freedom to place themselves in harm’s way
and undertake hot pursuit. The second is that it is the responsibility
of the immigration service to make sure that smaller ports in
particular have the right number of designated officers.
This is why I draw a contrast
with regard to the comments made by the director of border control last
week. He said that perhaps across the entire service25 per
cent. of immigration officers could be so designated, but that is not
to say that 100 per cent. of officers might not be designated at
smaller ports.
I think
the safer solution is for that scenario to unfold and for us to ensure
that there is a proper risk assessment at each port and proper scenario
planning, and that where we think the shift patterns and traffic we
envisage lead to a need for 100 per cent. designated officers, that is
the route we take. I think that that is the safer solution not only for
the public, but for immigration services
officers.
David
T.C. Davies:
Is it not the reality, however, that the
smaller ports will end up with fewer designated officers and the larger
ones will be where the designated officers are? Those are the officers
who have to undergo the most training, and with the way things work, we
all know that they will end up in the busiest ports, not the small
ones. Surely, at the very least, immigration officers should have the
power that police officers have at the moment, whereby if they are with
a member of the public, they may ask that person to assist them in
making an arrest. It is actually illegal for a member of the public not
to assist if a police officer asks them to do so, although I do not
think that that law is enforced in practice.
Surely immigration officers are
more than capable of making a decision as to whether a person poses a
danger. If that person has come through an airport, they almost
certainly will not be carrying any knives or bladed instruments. If
they have just jumped off the back of a lorry, they might have such
dangerous items, and one might have to take a slightly different view
as to how to restrain them. These are matters that immigration officers
can surely decide for themselves. If the Minister is keen to trust
immigration officers and public servants, is not the suggested approach
something we could be
doing?
Mr.
Byrne:
What we are seeking to do is run through the
logical sequence of this morning’s argument, which ran as
follows: when we are extending the powers that we are granting to
immigration officers, it is important that they have the right level of
training and that the right safeguards apply to their conduct. That is
why we propose the process of satisfying the Home Secretary that a
person is a fit and proper person. We also said that we would discuss
the process of designation not only with the police standards unit, but
with ACPO, and that we would make the criteria public so that both
Parliament and the public were could be satisfied that we were
designating only individuals who we thought satisfied the minimum
conditions necessary to exercise those powers. There is a greater need,
not a lesser one, for training and safeguards when we ask immigration
officers to undertake hot
pursuit.
The
bottom line is the point made by Opposition Members about whether there
would be the right number of designated officers at a port. I do not
entirely agree with the hon. Member for Monmouth that there is an
inexorable logic that at smaller ports 100 per cent. of officers will
not be designated. That is, rightly, a matter of operational policy.
However, the hon. Member for Ashford was right to say that ultimately
Ministers will have to account for the use of these powers at ports. In
unfortunate incidents in which it became apparent that the right number
of designated officers were not available, Parliament would rightly ask
Ministers to explain
why.
The amendments
are a step in the wrong direction, because when it comes to hot pursuit
there is a greater need for the protections that we envisage in the
process of designation. I therefore ask the hon. Gentleman to seek
leave to withdraw the
amendment.
Mr.
Jackson:
To put it bluntly, the Minister has not made the
case against the amendment, and I support the comments made earlier by
my hon. Friends the Members for Hertsmere and
Monmouth.
I
congratulate the Minister on being mentally agile in comparing the
position taken by the Liberal Democrats this morning with their
position this afternoon. We all know that they are capable of holding
two different positions at the same time, not just in the morning and
the afternoon.
Paul
Rowen:
It might be late in the afternoon, but I have to
respond to the hon. Gentleman. Given that our two parties take the same
position, albeit coming from different routes, if he is saying that we
are taking that position, we have to say that he is, too.
The point that needs to be made
is that there is a middle way. The Minister said earlier that training
for immigration officers would be improved; it would be proper and
sensible for all immigration officers, whether or not they are
designated, to be given some form of training in stopping and searching
individuals. It is the sort of training that has to happen in a variety
of professions, and if that were the case, the amendment would be
considered proper, which fits in with what the hon. Gentleman and I
were saying this morning.
Mr.
Jackson:
I beg the Committee’s forgiveness for
being unable to resist tweaking the nose of the new Labour-friendly
Liberal Democrats, as they are according to their leader, albeit that
he is their temporary leader.
We can dance
round the eye of an intellectual needle about the clauses, but at the
end of the day, they should be informed by practical, realistic
experience. As the Minister knows, my hon. Friend the Member for Clwyd,
West (Mr. Jones) raised the example of Holyhead when we
debated the matter on Second Reading. In the absence of any examples to
the contrary, the issue is that there are not enough immigration
officers and other law enforcement officers such as special branch and
others to deal with such matters.
We have heard lots of warm words
about training, as if it is a panacea for all the potential problems in
the clause. At present, there are no regulations in respect of that
training.
Mr.
Byrne:
The hon. Gentleman is being generous in allowing me
to intervene. Will he assure me that he will speak to his hon. Friend
the Member for Tatton (Mr. Osborne), who has recently
imposed on the Conservative party an edict on proposals for the extra
use of resources, and make the case that it should bring forward plans
for additional resources for the immigration
service?
Mr.
Jackson:
I commend to the Minister a superb document from
November last year, authored by my right hon. Friend the Member for
Haltemprice and Howden (David Davis) and my hon. Friend the Member for
Ashford, called “Controlling Economic Migration”. It
contains all the pearls of wisdom on the subject that he will ever
need.
Mr.
Jackson:
Ten years ago the bilateral agreement with France
ended and there was the issue of Sangatte. The practical point is that
we have had serious problems with people who should not be in this
country absconding from ports of entry. It is not necessarily right for
the Minister to say that everything will be all right and that people
will be designated and properly trained. The problem with some of the
clauses is feast and famine. Some are overly lax in their wording, but
this clause is overly prescriptive in its use of the word
“designated.”
I
am puzzled about the Minister’s language on the three quarters
of immigration staff who are not designated. A rather cursory approach
seems to be taken towards them in arguing that because they have not
been trained to the same level as the 25 per cent. who are designated,
they are not “fit and proper” persons. If three quarters
of immigration officers whom we employ are not considered fit and
proper to transact their normal duties, I am rather puzzled. I hope
that the Minister does not mean that they are not capable of doing the
jobs that they are paid
for.
The amendment is
nothing other than helpful. It is entirely in keeping with the position
that we have taken before and would give us flexibility if we wanted to
detain a person who had escaped. We have all seen the rather lax
situation whereby police community support officers have a certain
amount of time to hold people before they can duly be arrested by a
constable, and how difficult that is in the real world, where people
are violent and abusive and cause problems. The amendment is flexible
and I wholly support
it.
Mr.
Byrne:
I know that the hon. Gentleman is not deliberately
trying to traduce my argument, so perhaps I can give him some
reassurance that when we talk about people being “fit and
proper”, we mean fit and proper for the purpose. Perhaps I was
using the phrase in a careless form of shorthand. They must
be
“fit and proper for
the purpose”
under
clause 1(2)(a) for the purpose of clauses 1 to 4.
In summary, my argument is this:
if we are asking people to undertake what will often be the dangerous
work of hot pursuit, it is more important, not less, that adequate
training and protections are in place. The amendment would cast those
protections aside and would be a move in the wrong direction. It is in
contradistinction to the arguments made this morning, which underlined
the need for the right level of training and process to be in place
before we seek to designate officers under the terms of the Bill. I
therefore hope that the hon. Member for Ashford will seek to withdraw
it.
Damian
Green:
This group of amendments has provoked a more
wide-ranging and deeper debate than I might have hoped, and it has been
interesting. I am grateful for the eloquent support of my hon. Friend
the Member for Peterborough, although I should perhaps move away from
him slightly on his remarks about the current leader of the Liberal
Democrats, whom I profoundly hope will remain leader until at least the
day after the next general election. I am grateful to my hon. Friend
also for mentioning the pamphlet that I produced with my right hon.
Friend the Member for Haltemprice and Howden last year,
“Controlling Economic Migration”. I am glad to hear that
the Minister has read it, and I will be happy to make copies available
to any members of the Committee who have not yet read it. Signed copies
will be extra.
5.45
pm
The Minister
has spoken about possible inconsistencies between arguments. I would be
more convinced by his generous words about the excellent debate that we
had this morning, in which some very good points were made, if he had
accepted any of the amendments to which those arguments related. As he
did not accept a single one, it seems a touch spurious to pray the
arguments used for those amendments in aid of his own
case.
The
Minister’s best point concerned hot pursuit, to which he
sensibly returned in his final argument. He said that that is clearly a
potentially dangerous situation and the one in which—more than
any other—it is desirable to have appropriately trained people.
That is a fair point, and it is one of the reasons why we think that
the people engaged in hot pursuit and employed at borders should belong
to a properly trained police force. I apologise to him for returning to
the matter, but this is the second occasion in a couple of hours in
which he has essentially made the case for a border police force. When
he makes sensible, practical points about what should happen at our
borders and what sort of powers immigration officers or those standing
at the border should have, he is making the case for a border police
force. He is right about hot pursuit. Even if he gets his way and we do
not have a border police force for a few years, we have to weigh up the
danger that may be caused by the hot pursuit of anybody, whether by a
designated immigration official, another immigration officer or a
member of the public, such as the willing bystander posited by the hon.
Member for Birmingham, Yardley as a potential helper for designated
immigration officers at the border.
We have to balance the picture
that the Minister has painted against the other picture—the one
that I have been trying to paint—which is a counsel of despair.
If somebody gets away from the designated official, or even injures
that official so that they cannot pursue, that is it—that person
will have got away. Purely on the balance of danger to the public, if
we send out the signal that if someone who enters illegally can get out
of the clutches of the person who tries to detain them they have a fair
chance of escaping, then we will increase the chance of a violent
struggle and injury, or worse, to immigration officials. If, however,
people know that there is a properly trained and equipped force at the
border, they are less likely either to try to come in that way or, if
apprehended, to make a potentially violent run for it.
Even in his
own terms, the Minister’s arguments do not add up. He will face
the problem that even if, as he has said, he were to designate every
one of the immigration officers at the smaller ports as those who will
have specific training, there will be times when those places do not
have the necessary cover. Then word will get out that certain ports
have a smaller percentage of designated officers, and those ports will
be deliberately put under stress by traffickers, people smugglers and
individuals—perhaps serious criminals—who will try to
come into the country
illegally.
Even though
the Minister has spoken at length and has been very generous in giving
way to my hon. Friends and to Liberal Democrat Members, he has not
convinced me that the amendment will not improve the Bill’s
contribution to the safety of our borders. I therefore commend the
amendment to the Committee.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 6, Noes
8.
Division
No.
4
]
AYESNOES
Question
accordingly negatived.
‘(6)
Detention under this section shall be treated as detention under the
Immigration Act 1971 (c. 77) for the purposes ofPart 8
of the Immigration and Asylum Act 1999 (c. 33) (detained
persons).’.
I
shall not detain the Committee too long on this technical amendment.
Its ambition is to ensure absolutely that the powers that we have in
place reflect operational reality on the ground at our ports. The other
amendments that we have debated have centred on providing immigration
officers with new powers of detention in respect of British nationals.
In the debate that we have just had on hot pursuit, we talked a little
about the fact that many of our ports have detention facilities that can
be and are used to secure individuals for a period of time. The period
of time that we have stipulated in the Bill
is
“no longer than three
hours”
in respect of
British
citizens.
The
operational reality at many of our ports is that the facilities are
often supervised by detainee custody officers who operate under powers
given in part VIIIof the Immigration and Asylum Act 1999.
Thatpower relates to detained persons under the terms of
section 147 of the 1999 Act, which refers to
“persons detained or required to
be detained under the 1971 Act or under section 62 of the Nationality,
Immigration and Asylum Act
2002”.
The
amendment seeks to extend the definition to individuals who are
detained under this Bill. Without the amendment, we would need to
provide for separate facilities to be organised under different
arrangements. I do not think that the ports would welcome that
regulatory burden, which would complicate and confuse detention
facilities management at the ports. We have therefore introduced this
amendment to ensure that the detainee custody officers who are in place
already and who operate under protections that are already in place can
supervise those who are detained under the powers in this Bill as well
as the powers in earlier
legislation.
Amendment
agreed
to.
Clause 2,
as amended, ordered to stand part ofthe
Bill.
|
| |
| ©Parliamentary copyright 2007 | Prepared 7 March 2007 |