UK Borders Bill

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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.
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.
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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.
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.
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.
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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