Clause
45
Exceptions
Mr.
Byrne:
I beg to move amendment No. 29, in
clause 45, page 24, line 3, leave
out ‘Sections 1 to 4 and 21’ and
insert
‘Sections 1 to 4,
21 and 27(1) and (2)’.
The
Chairman:
with this it will be convenient to consider
Government amendments Nos. 30 to
32.
Mr.
Byrne:
The Under-Secretary of State for the Home
Department, my hon. Friend the Member for Enfield, North (Joan Ryan),
flags up an issue on trafficking that did not emerge until after
publication of the Bill. The amendment seeks to bring the Bill
perfectly in line with our devolution arrangements. It proposes the
simple remedy of delimiting the extent of the relevant clauses to
England, Wales and Northern
Ireland.
The effect of
the amendment is limited. My hon. Friend and I needed some reassurance
of what the practical implications would be. The amendment will allow
us to preserve the existing situation. If there is people smuggling or
human trafficking into the United Kingdom, or from Scotland into
England or from England into Scotland, an offence would still be
committed in each of those three situations regardless of whether the
offence was undertaken by a British national or by a foreign national
and of whether the crime was organised in the UK or abroad.
If the clause remains
unamended, prosecution of the trafficking offence would need to be
undertaken in a court in England. We therefore look to the Scottish
Executive, at some time after the elections, to bring forward proposals
to ensure that the remit of the Bill, and particularly of clause 45, is
extended to Scotland so as to ensure that the offence can be prosecuted
in Scottish courts as well as English courts. I am satisfied that there
is no practical diminution of our intent to prosecute the offence in
the UK. We have devolution arrangements in place, and it is important
that Bills passed by the House should be in line with
them.
4.45
pm
Damian
Green:
The issue of devolution has bedevilled the Bill
from the start of its Committee stage almost to the finish. If I
understand the Minister, he just said that for the provisions of the
Bill to be effective, the Government will have to plead with the
Scottish Executive after the elections to pass
them.
Mr.
Byrne:
Not the Bill, but the
clause.
Damian
Green:
I misspoke. I, too, meant to refer to the clause.
Presumably, until that happens the protections afforded by the Bill
will not be fully available to the people of England, Wales and
Northern Ireland or, presumably, Scotland. As he said, he will depend
on the good will of the Scottish Executive after the Scottish elections
to agree to the things that the current Labour-led Scottish Executive
has failed to agree to. I find that position, as I have done
throughout, a slightly unusual one for a Government to find themselves
in. However, many of the provisions of the Bill are useful, so I hope
that, whatever the make-up of the Scottish Executive after the Scottish
elections, Ministers will find that their powers of persuasion are more
effective with the new Executive than they appear to be with the
current one.
Mr.
Byrne:
I am grateful to the hon. Gentleman for that
reflection on the strengths and weaknesses of
devolution. The key issue for me is that the provisions of the Bill will
be given effect in the United Kingdom. We will be able to seek and
deliver prosecutions under the offences of people trafficking and human
smuggling. If the party that I think is going to win the Scottish
election does win, it will not be long before the provisions apply in
Scotland too.
Amendment agreed
to.
Amendments
made: No. 30, in clause 45, page 24, line 6, after
‘extend’, insert ‘(subject to subsection
(3))’.
No.
31, in clause 45, page 24, line 10, leave out
‘But’.
No. 32, in clause 45, page 24,
line 10, after ‘shall’, insert ‘(subject to
subsection (1))’.—[Mr.
Byrne.]
Clause
45, as amended, ord
ered to stand part of the
Bill.
Clause 46
ordered to stand part of the
Bill.
New
Clause
2
Assaulting
an immigration officer:
offence
‘(1) A person who
assaults an immigration officer commits an
offence.
(2) A person guilty of
an offence under this section shall be liable on summary conviction
to—
(a) imprisonment for
a period not exceeding 51
weeks,
(b) a fine not exceeding
level 5 on the standard scale,
or
(c)
both.
(3) In the application of
this section to Northern Ireland the reference in subsection (2)(a) to
51 weeks shall be treated as a reference to 6
months.
(4) In the application
of this section to Scotland the reference in subsection (2)(a) to 51
weeks shall be treated as a reference to 12
months.
(5) In relation to an
offence committed before the commencement of section 281(5) of the
Criminal Justice Act 2003 (c. 44) (51 week maximum term of
sentences) the reference in subsection (2)(a) to 51 weeks shall be
treated as a reference to 6 months.’.—[Mr.
Byrne.]
Brought
up, and read the First
time.
Mr.
Byrne:
I beg to move that the new clause be read a Second
time.
The
Chairman: With this, it will be convenient to consider new clause
3—Assaulting an immigration officer: powers of arrest,
&c.
Mr.
Byrne:
This is a debate that we have, to an extent,
already had. The purpose of the clauses is to create the new offence of
assaulting an immigration officer, to establish penalties and sanctions
relating to that offence, and to ensure that there is the power of
arrest, and to make the technical and consequential amendments that are
required to ensure that it is possible to give effect to warrants to
enter premises, to search individuals who are arrested and to seize
material. They not only bring the new offence into being, but align it
with the similar offences of assaulting an officer of Her
Majesty’s Revenue and Customs and assaulting a police officer.
The proposed penalties, which have been well debated by the Committee,
are fairly standard and well established.
Before I sit down I underline
the point that we have had a useful debate in the Committee, in which
we have spent some time celebrating the contribution, pride and
professionalism of our immigration officers. The Committee can take this
opportunity to send an important signal to immigration service staff
that we take their work extremely seriously and will ensure that they
have the protection of the law where and when they need
it.
Mr.
James Clappison (Hertsmere) (Con): I have just one
question. We notice that the offence in the new clause will be triable
only summarily. If an immigration officer is assaulted and any harm is
caused to him, which one imagines there might well be in many cases, it
then becomes an offence of assault occasioning actual bodily harm and
triable at the Crown court, because that offence carries a maximum
sentence of five years and can be tried in either the magistrates court
or the Crown court.
In a case in which the offence
becomes triable in the Crown court and is tried there, what will happen
to the summary-only offence of assaulting an immigration officer? Will
it be able to stand as an alternative on the indictment in the Crown
court for the offence of assault occasioning actual body
harm?
Mr.
Byrne:
I am grateful to the hon. Gentleman for such a
direct question. Will he permit me to deliver him a much fuller
response in writing than I am able to give him this
afternoon?
Mr.
Clappison:
I look forward to the Minister’s
response.
Mr.
Blunt:
While the Minister is offering explanations in
writing, would he be willing to offer an explanation of the advice that
he received on the earlier amendment No. 108 so that we can decide
whether to return to the matter on
Report?
Mr.
Clappison:
Will the Minister address a related question in
his letter to me? Will there be any way to communicate to sentencing
judges, through sentencing guidelines, that if somebody is convicted of
assaulting an immigration officer and occasioning actual bodily harm,
the fact that it was an immigration officer who was assaulted should be
regarded as an aggravating feature of the offence? That is to say, the
fact that it was an offence of causing actual bodily harm to an
immigration officer should be regarded as an aggravating circumstance
and make the sentence more serious than it would otherwise
be.
The
Chairman:
Order. Before I call the Minister to respond, I
have to say that he is obliged to respond only to the points on new
clause 2. The hon. Member for Reigate is out of order in trying to
raise amendment No. 108
again.
Mr.
Byrne:
I have made it my policy to be as helpful to the
Committee as I possibly can, and that is the path of least resistance
to a successful Third Reading and Report stage. If there is advice that
I can usefully summarise and provide to the Committee, I will of course
seek to do so.
I am
grateful for the comments of the hon. Member for Hertsmere. He has been
consistent in his words of
praise for the professionals in the immigration service. Like me, he
understands that is important for the House to send a clear signal of
support to immigration officers, who often do difficult work in
dangerous circumstances. I will undertake to have a conversation with
my noble Friend Baroness Scotland to understand what guidance we can
issue to the judiciary so that they, too, can understand the gravity
and seriousness with which we want the offences to be
taken.
Question put
and agreed
to.
Clause read
a Second time, and added to the
Bill.
New
Clause
3
Assaulting
an immigration officer: powers of arrest,
&c.
‘(1) An immigration
officer may arrest a person without warrant if the officer reasonably
suspects that the person has committed or is about to commit an offence
under section [Assaulting an immigration officer:
offence].
(2) An offence under
section [Assaulting an immigration officer: offence] shall be treated
as—
(a) a relevant
offence for the purposes of sections 28B and 28D of the Immigration Act
1971 (c. 77) (search, entry and arrest),
and
(b) an offence under Part 3
of that Act (criminal proceedings) for the purposes of sections 28(4),
28E, 28G and 28H (search after arrest, &c.) of that
Act.
(3) The following
provisions of the Immigration Act 1971 (c. 77) shall have effect
in connection with an offence under section [Assaulting an immigration
officer: offence] of this Act as they have effect in connection with an
offence under that Act—
(a) section 28I (seized material: access and
copying),
(b) section 28J
(search warrants:
safeguards),
(c) section 28K
(execution of warrants),
and
(d) section 28L(1)
(interpretation).’.—[Mr.
Byrne.]
Brought
up, read the First and Second time, and added to the
Bill.
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).’.—[Mr.
Byrne.]
Brought
up,
and
read the First and Second
time.
Amendment
proposed to the proposed new clause: (a), leave out subsection (4)
and
insert—
‘(4)
The Chief Inspector shall have the power to investigate individual
cases.’.
Question
put, That the amendment be made:—
The
Committee divided: Ayes 6, Noes
8.
Division
No.
15
]
Davies,
David T.C.
(Monmouth)
Question
accordingly negatived.
Clause added to the
Bill.
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