Schedule
Repeals
Mr.
Byrne:
I beg to move amendment No. 116, in schedule,
page 25, line 4, at end
insert—
|
‘Race
Relations Act 1976
(c. 74)
|
Section
19E.’.
|
The
Chairman:
With this it will be convenient to
discuss the following: Government amendments Nos. 117 to
119.
Government new
clause 6—Border and Immigration Inspectorate:
Establishment—
‘(1)
The Secretary of State shall appoint a person as Chief Inspector of the
Border and Immigration
Agency.
(2) The Chief Inspector
shall monitor and report on the efficiency and effectiveness of the
Border and Immigration Agency; in particular, the Chief Inspector shall
consider and make recommendations
about—
(a) consistency
of approach within the Border and Immigration
Agency,
(b) the practice and
performance of the Border and Immigration Agency compared to other
persons doing similar
things,
(c) practice and
procedure in making
decisions,
(d) the treatment of
claimants and applicants,
(e)
certification under section 94 of the Nationality, Immigration and
Asylum Act 2002 (c. 41) (unfounded
claim),
(f) compliance with law
about discrimination in the exercise of functions, including reliance
on section 19D of the Race Relations Act 1976 (c. 74) (exception
for immigration functions),
(g)
practice and procedure in relation to the exercise of enforcement
powers (including powers of arrest, entry, search and
seizure),
(h) the provision of
information,
(i) the handling
of complaints, and
(j) the content of information about conditions in
countries outside the United Kingdom which the Secretary of State
compiles and makes available, for purposes connected with immigration
and asylum, to immigration officers and other
officials.
(3) In this section
“the Border and Immigration Agency”
means—
(a) immigration
officers, and
(b) other
officials of the Secretary of State, and the Secretary of State, in
respect of functions relating to immigration, asylum or
nationality.
(4) The Chief
Inspector shall not aim to investigate individual cases (although this
subsection does not prevent the Chief Inspector from considering or
drawing conclusions about an individual case for the purpose of, or in
the context of, considering a general
issue).’.
And
the following amendment thereto: (a), Leave out subsection (4) and
insert—
‘(4) The Chief
Inspector shall have the power to investigate individual
cases.’.
Government
new clause 7—Border and Immigration Inspectorate: Chief
Inspector:
supplemental
.
Government
new clause 8—Border and Immigration Inspectorate:
Reports—
‘(1) The Chief
Inspector shall report in writing to the Secretary of
State—
(a) once each
calendar year, in relation to the performance of the functions under
section [Border and Immigration Inspectorate: Establishment] generally,
and
(b) at other times as
requested by the Secretary of State in relation to specified
matters.
(2) The Secretary of
State shall lay before Parliament a copy of any report received under
subsection (1).
(3) But a copy
may omit material if the Secretary of State thinks that its
publication—
(a) is
undesirable for reasons of national security,
or
(b) might jeopardise an
individual’s
safety.’.
And
the following amendment thereto: (a), after ‘State’,
insert ‘and the Information
Commissioner’.
Government
new clause 9—Border and Immigration Inspectorate:
Plans
.
Government
new clause 10—Border and Immigration Inspectorate:
Relationship with other bodies:
general
.
Government
new clause 11—Border and Immigration Inspectorate:
Relationship with other bodies: non-interference
notices
.
Government
new clause 12—Border and Immigration Inspectorate: Abolition
of other
bodies
.
Government
new clause 13—Border and Immigration Inspectorate: Prescribed
matters
.
Government
new clause 14—Senior President of
Tribunals
.
Mr.
Byrne:
These amendments and new clauses form an important
part of the reforms set out by my right hon. Friend the Home Secretary
last July in the IND review, which included a trinity of principles for
the reform of the IND. The first was that it should operate as an
arm’s length agency, with greater operational freedom from the
Home Office. [Interruption.] We are all Catholics at the Home
Office.
Secondly, we
said that rather than having a monolithic mode of operation the IND
should be much more regionalised, so that its offices and
personnel could work more closely with individuals in police forces,
local authorities and other parts of Government that are constructed on
a local basis. We should have a closer relationship than we do with the
communities that we serve. The amendments and new clauses
are the third part of that story. I said clearly that I thought that
the way in which the IND was inspected, held accountable and rendered
transparent was not robust enough, and that we would have to change
things if we wanted to set it on a path of sustainable long-term reform
and progress. I do not think that 11 different inspectorates and
agencies looking over the IND’s business are powerful enough. We
need fewer, more powerful organisations, able to look more closely and
more forensically at the IND, so as to report to the Secretary of
State, to this House and to local communities on how it is doing
nationally and in those communities.
Consequently, we launched a
consultation on 18 December 2006. I regret that it was not
possible to provide the relevant clauses to this Bill on Second
Reading, because it would have been helpful to debate them. However, we
were caught between doing that and needing to conduct a thorough
consultation with the public before introducing them. I signalled that
the clauses would arrive and I regret that they were not available in
time.
The
consultation paper was favourably received. The consultation closed on
16 February and the Government provided their response on 1 March,
along with a written ministerial statement. I am glad to say that, like
other consultations that we have launched in the past 12 months, this
one was wildly popular, with 92 per cent. of respondents in favour of
the arrangements that we proposed. In particular, 94 per cent of
respondents said they wanted the overall efficiency and effectiveness
of IND to be the subject of inspection. Ninety-three per cent said they
wanted to see the quality of decision making included within the ambit
of the inspectorate and 86 per cent said they wanted to see the use and
the IND’s operation of enforcement policy within the ambit of
the inspectorate as
well.
12.30
pm
The debates we
have had over the last couple of weeks in this Committee Room have lent
further argument to the need to include a much more robust inspection
of enforcement than we have today within the ambit of a much more
powerful regulator.
There are, however, a number of
fields of operation which we propose to exclude from the work of the
inspectorate simply because we already have effective, well established
arrangements in place and, to some extent, debates which are already on
the record about whether those inspectorates should be dissolved and
reconstituted with others. In particular I mean detention, where we
propose to preserve the role of Her Majesty’s chief inspectorate
of prisons, where we intend to preserve the role of the prison and
probation ombudsman and where we intend to preserve the role of
independent monitoring boards.
I would like to place on the
record the debt of gratitude that I and the Home Office owe to
independent monitoring boards, in particular at the
moment when there are a higher number of foreign national prisoners in
our estate than we have experienced before. I rely extensively on the
feedback that we receive from IMBs. When I met the chair of IMB at
Campsfield on Thursday night last week I was again struck by the
dedication and concern that many people who serve with IMBs give to
their work. We are very lucky to have their
help. We also intend
to preserve the advisory board on nationality and immigration. This is
the group of individuals who advise us on the way in which we conduct
our work in the field of citizenship and nationality. For the time
being at least we intend to preserve the work of the entry clearance
monitor who looks after and inspects the operation of the IND’s
or rather UKvisas’ business abroad. Before any proposals are
brought forward in relation to the entry clearance monitor we need
slightly more time for consideration than we have been given
today.
The second
category—this is the subject of the hon. Member’s
amendment—of exclusions that we propose is the exclusion of
consideration of individual cases. I do not think that foreign
nationals in this country are short of judicial protection or judicial
regimes to investigate the merits of their case. The parliamentary and
health service ombudsman provides a way of looking at individual cases
and the way in which the IND conducted the review of them.
The proposals that we are
bringing forward, therefore, are not any kind of constitutional
revolution, as Opposition Members will be pleased to hear. They are
modelled on proposals that are tried and tested and found to work. In
particular they are modelled on the proposals that are already in place
for HMIC, HMCIP, the courts and administration inspectorate, the CPS
inspectorate and the inspectorate of probation, all of which were
covered in the Police and Justice Act 2006 and which were the subject
of debate in this
House.
Broadly
we are asking the new inspectorate to take on a general duty to monitor
and report on the efficiency and the effectiveness of what will become
the new border and immigration agency. It will review the treatment of
claimants and applicants to ensure consistent decision making across
the board. For the first time there will be comprehensive inspection of
the use of enforcement powers by immigration officers,
including—this is important given the debate we have had in this
Committee—the powers of arrest, the power of entry, the power of
search and the power of seizure. It will look further at the
information that is provided to applicants by the border and
immigration agency to applicants and at the information that is
provided to the general public. It will inspect the processes by which
the agencies handle complaints. It will make comparisons with other
bodies that are undertaking similar work. It will look at the way the
Home Secretary exercises his power of certification under section 94 of
the Nationality, Immigration and Asylum Act 2002. It will look at the
quality of inspection and country of origin reports that are provided
and used by the border and immigration
agency.
Beyond
this—again this is important, given the debates we have had to
date in this Committee—it will take on an enhanced role, looking
at the way in which the IND complies, not only with section 19D of the
Race Relations Act 1976, which covers the way in which ministerial
exemptions are given under
immigration powers for provisions in the Race Relations Act, but it will
look more widely still at the way in which the IND is operating its
business in accordance both with the ambitions and the spirit of that
Act and the letter of the law. In conclusion, the IND is an
agency that will benefit from the disinfectant of sunlight. The people
of this country have a right to know how well the immigration service
is working on their behalf. That is an important way in which we can
raise the country’s confidence in the immigration service. The
inspectorate should have the opportunity to respond not just to the
Secretary of State, but to Parliament and to prescribed people under an
order-making power, which we set out. We ask that the inspectorate
co-ordinate their activities with others, including the senior
president of tribunals, to ensure that they do not step on each
other’s toes when it comes to the operation of tribunals. It is
an important step forward on the road to reform and I commend it to the
House.
Damian
Green:
Let me start with something on which I suspect the
Minister will be in agreement. This is one of the most important parts
of the Bill and so I regret that the Committee is unable to have the
wisdom of the Liberal Democrat Benches. They took the trouble to raise
a point of order on the Floor ofthe House yesterday about the
effects of this part of the Bill, but sadly they have not chosen to be
here to debate it this morning. I am sure that their contribution would
have been very
useful.
The Minister
talked about the trinity of reforms, perhaps casting an unnecessarily
holy glow over the Home Secretary’s proposals in this area. But
it is one to which I naturally respond, as I am sure you do,
Mr. Amess. The Minister’s use of language is either
peculiarly appropriate or inappropriate, depending on where one comes
from. His explanation of regionalisation left me even more perplexed
about why he is going down that
route—[
Interruption.
]
The
Chairman:
We are very patriotic in this Committee, but I
ask the hon. Member for Monmouth to turn off his
mobile.
Damian
Green:
I feel that that is a mobile that deserves a wider
audience than just this Committee. I am sure that there are parts of
Monmouth where anthems other than “Land of Hope and
Glory” may be
heard.
The Minister
explained that this measure was part of the reforms that went along
with regionalisation and that it would help the IND better to
co-ordinate with local police forces.
Mr.
Byrne:
Amongst
others.
Damian
Green:
Amongst others, none of whom is particularly
relevant on a regional basis. I am glad that we have had that
explanation from the Minister. I have thought all along that
regionalisation was a huge diversion from the reforms that were needed
in the IND. The Minister’s comments this morning rather
confirmed that. What is needed is better co-ordination. I have no
problem with the Minister’s general point
that having an independent inspectorate, rather than the mixture of
inspections to which the immigration service is subject at the moment.
It is perfectly sensible. Our problem with parts of these amendments
and new clauses is where they fall short of that ambition.
There are two amendments in the
group in my name. The first one, which the Minister dealt with, is
about whether the chief inspector will have the power to investigate
individual cases. One of the more disingenuous parts of the
Minister’s remarks on the Bill was when he appeared to imply
that my amendment would give more protection to individual foreign
nationals, who he said already had enough protections. By contrast, the
purpose of allowing the chief inspector to investigate individual cases
is to improve his or her ability to do the job of delving into the
darker corners of the IND, where the really serious scandals often
emerge. The purpose of the amendment is to reverse what is in the
clause now and to give the inspector specific power to investigate
individual
cases.
Throughout the
course of our deliberations on the Bill we have praised the
professionalism and dedication of those who work in the immigration
service. We were right to do so, but we all know that from time to time
things go wrong. Things particularly go wrong at Lunar house; we have
seen a succession of scandals there, involving all sorts of deeply
unpleasant corruption, of which the most vivid was the sex-for-visas
scandal. It seems very strange to set up a new inspectorate because the
Minister wanted, he said, to apply the disinfectant of
sunlight—I think that was today’s soundbite—to the
administration over which he presides, but then to say that that
particular disinfectant cannot be used on some of our most toxic cases,
which are the individual scandals that happen. If so, he will produce
an inspectorate that is not able to inspect what they ought to be
inspecting, because he will know that many of the worst examples of the
manifold problems that the immigration system face are often exposed by
the individual case.
I
should point out that we are proposing to empower the chief inspector
to inspect every case, but not to mandate him to do so, because that
would clearly involve overload and prevent the inspector from doing all
the other desirable things that we would all want him to do. Without
the power to investigate individual cases, the chief inspector will be
hobbled, not be able to do the job and, more importantly therefore, not
be a suitable tool for Ministers to improve the Department. It would be
a huge shame if one possible method to enable Ministers to do their job
properly does not come into force in the proper way because of drafting
which at best is short-sighted and at worst is actually attempting to
set up an inspectorate designed not to inspect too much that might be
embarrassing for the political masters of the officials who might have
made the mistakes or, even worse, committed the crimes such as we have
seen happen inside the
IND.
The Minister also
talked about improving public confidence—I think—which is
a good, neutral phrase, since public confidence is clearly at such a
low ebb. He will know as well as I do that nothing serves public
suspicions of cover-ups or fuels feelings that complaints are not being
taken seriously like a series of internal inquiries. That is a
longstanding bugbear with Whitehall. Here is an opportunity to get away
from the
culture of the internal inquiry. Almost whatever conclusion such an
inquiry comes to, it is always dismissed by the sceptical as a
whitewash, because there is no sign of independence. For the most
serious cases, I strongly urge the Minister that the chief inspector
ought to have the power to investigate individual
cases. The Minister
does not have to look far to see an inspectorate that works well. I
commend Lord Ramsbotham, the former chief inspector of prisons, as an
example of how to be an inspector in a way that makes waves and causes
ructions and problems, of course, but leads to the long-term exposure
of problems and therefore to the long-term improvement in the quality
of the service. Lord Ramsbotham did not sit behind a desk, look at
statistics and take an overview, he went out and did a lot of work in
individual prisons. It is the ability to get out and look at individual
cases and to draw conclusions from them that will make an inspectorate
successful. Amendment (a) to new clause 6 is extremely important, as it
would help us to further the hope that both sides of the Committee
share that the inspectorate will prove to be as significant
and challenging as we believe it should
be.
12.45
pm
My
second amendment, to new clause 8, is equally important because it
attempts to ensure that the procedures are as open as possible. Under
the new clause as drafted, the Secretary of State can delete material
from the chief inspector’s report to Parliament if he considers
that it would call into question the safety of an individual person or
constitute a threat to national security. Those are reasonable,
underlying desires; the amendment would insert some independence into
the judgment of what should be deleted. It would ensure that the
Information Commissioner considered it and thus obtained an outside
view of whether deleted material had been deleted for proper reasons,
such as those of national security, for example, or for less proper
reasons, such as avoiding embarrassment to Ministers.
In principle, new clause 8 is a
good proposal. We have argued repeatedly in our discussions that
Ministers should report to Parliament on the effects of the Bill and
part of me welcomes their late conversion to that principle. The
amendment, like the previous one, would make that reporting effective
rather than half-hearted.
The Home Secretary is clearly
not the only person who can make judgments on whether a person’s
safety might be in danger or, indeed, whether national security would
be affected. The Minister may argue that the Information Commissioner
is not the right person for that purpose, and we would be happy to
table amendments at a later stage to insert someone else. The amendment
would establish the principle that the person must be somebody
independent, who does not rely on the Home Secretary for his
appointment, who is not part of the Whitehall machinery and who can
take a view on whether the important material contained in the chief
inspector’s report should not be pre-censored by the Home
Secretary.
I can tell
the Minister now that if the report has to go through a Home Office
filter before it is published and, for whatever good reason, some
material is
deleted, there will be an enormous amount of public cynicism about the
ultimate value of the chief inspector’s report. If Ministers are
sincere in their desire not just to allow some sunlight into this
matter but also, in the long term, to improve the workings of the
system, which is just as important, they should be prepared to take
along the way the lumps of the individual problems that the chief
inspector has reported. The slightest suspicion that the chief
inspector is being censored will be hugely damaging to that
confidence-building measure and to the process of finding people of the
appropriate calibre to work for the inspectorate. I urge the Minister
to be bold, and not to try to over-respond to the culture of secrecy
that too often comes from inside Whitehall Departments, and to accept
that if he wants to let in the sunlight, he must do so properly. He has
to allow some independent body to look at what material is being taken
out of the chief inspector’s
report. The overall
purpose of the amendments is to ensure that the reality of what appears
in the legislation lives up to the rhetoric that the Minister has put
behind it. He says that it will be important and an opening up of the
system. It is possible that that will be the case, but that will be
much more likely if the two important changes are made: the chief
inspector should be given the power to investigate individual cases, if
he wants to; and somebody other than the Home Secretary has the ability
to decide whether information should be deleted from the annual reports
of the chief inspector. Both the amendments would markedly improve this
part of the Bill, and I commend them to the
Committee.
Mr.
Byrne:
I am very grateful for the welcome, however
sceptical, that the hon. Gentleman has offered. I should like to make a
couple of points in response. I hope that he will accept that the
underlying principle of my response is that having set up the
inspectorate, we do not want it to be snowed under with applications
for those who are seeking simply to frustrate their removal from this
country with further applications and appeals in order to slow down the
deportation process. We want to be absolutely clear that if people are
to be deported, if they have the right to appeal it will go to the
immigration appeal tribunal, where judgments are made. That will be the
end of the line. We do not want people to see the inspectorate as
something else to which they can apply to delay in some way their
removal from the country where that is the right outcome. I am sure
that that is not the wish, intention or ambition of the hon. Gentleman,
but I think that he would accept, in reflective moments, that that is
indeed a risk. The point that he makes is important, particularly when
it comes to the issue of corruption. We have sought to provide
sufficient powers for the chief inspector to do precisely what he is
seeking. For example, we empower the chief inspector to carry out ad
hoc investigations, and where necessary to carry out unannounced
inspections. That is important.
In new clause 6(4), we say that
although the chief inspector should not aim to investigate individual
cases—we do not want the investigation of individual cases to be
the inspector’s day job—we are quite clear in parentheses
that that subsection does not prevent the chief inspector from
considering or drawing
conclusions about an individual case for the purpose of, or in the
context of, considering the general issue. The intention that sat at
the heart of the comment made by the hon. Gentleman was about how the
chief inspector was able to have sufficient insight into individual
cases so that he or she might be able to draw general conclusions about
the state of the IND’s business and report to the Secretary of
State, the House and local communities. I will study the hon.
Gentleman’s remarks very carefully. I think that I understand
where he is coming from. I do not think that he wants to put more
barriers to removal, but to ensure that the inspector has sufficient
power to look at individual cases and learn from them, which has a more
general application. I will seek to ensure that new clause 6(4) gives
us the ability to do
that.
The
second issue, however, is the Information Commissioner. It is
important, as a matter of principle, that we do not get ourselves in a
situation in which we are snowing the Information Commissioner from
across Government with a range of information reports, which he or she
must approve a priori, before their release into the public domain.
There is already a reasonably robust process by which people can apply
to the Department to ask for information about omissions. If they are
not satisfied with the response, they can apply to the Information
Commissioner who can investigate. The Information Commissioner can, and
often does, insist on disclosure under the Freedom of Information Act.
There is a genuine point of efficiency regarding whether the
Information Commissioner should sit before the report or operate a
process after its issue. I also accept that there are issues that have
to be balanced with confidence and disclosure.
The comments of the hon. Member
for Ashford are extremely helpful. I think that I have caught the tenor
of his remarks and will ensure that we have got the provisions in line
with them, as far as is
possible.
Damian
Green:
I am grateful to the Minister for those remarks but
do not find them entirely satisfactory in either case—although
the first set were better than the second. However, it is not my
reading of subsection (4) of new clause 6 that it will encourage the
investigation of individual cases by the chief inspector. I made it
clear in my original remarks that the chief inspector should not spend
most of his time dealing with individual cases. The Minister says that
people might bombard him with their individual cases as a means of
delaying their removal from this country. Of course that is
undesirable, but as it will be the chief
inspector’s decision as to which individual cases he chooses to
take up, that simply would not happen—they would be
automatically dismissed.
The drafting of subsection (4)
is extremely careful. It
begins:
“The
Chief Inspector shall not aim to investigate individual
cases”,
which seems to be
a fairly strong instruction to any inspector that that should not be
what he does. It then says
that,
“this subsection
does not prevent the Chief Inspector from considering or drawing
conclusions about an individual case for the purpose of, or in the
context of, considering a general
issue”.
It should be for
the chief inspector to decide what is an important general issue, on
the basis of an individual case. Very occasionally, the case itself
might be the issue—if indeed there are visas on sale for sex at
Lunar house, as it has been accused of and as has been reasonably well
attested. Even if there is only one person doing that, it is a general
issue.
Mr.
Byrne:
I am following the remarks of the hon. Gentleman
carefully and repeat my offer to examine his remarks and check that new
clause 6(4) is in line with his ambitions, which I think I share. On
that specific example, under new clause 6(2)(c),
“the practice and procedure in
making decisions”
is
obviously a general issue, which he is talking about. The ability of a
chief inspector to look at individual cases in the context of a general
issue is, therefore, very clear. The chief inspector has the power to
look at specific cases and it is quite obvious that the example that
the hon. Gentleman prays in aid is
precisely,
“the practice
and procedure in making
decisions”.
The way that
subsection (2)(a) to (f) is drawn is rather
wide.
Damian
Green:
I am grateful to the Minister for that attempted
clarification but it makes my case stronger—chief inspectors
should not be enjoined in this way from taking a decision that he or
she should be able to take. It seems to strengthen the argument that
subsection (4) should not be part of the new clause—quite apart
from all of the points that I have already made—because it might
be seen as contradicting subsection (2). I hope that the Minister can
take that away and I give notice that I intend to press the amendment
in the hope of improving his thought
processes.
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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