Borders, Citizenship and Immigration Bill [HL]

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Borders, Citizenship and Immigration Bill [HL]

Borders, Citizenship and Immigration Bill [HL]
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Inspections by Her Majesty’s Inspectors of Constabulary etc.
(1)
The Secretary of State may make regulations conferring functions on Her
Majesty’s Inspectors of Constabulary, the Scottish inspectors or the Northern
Ireland inspectors in relation to—
(a)
designated customs officials, and officials of the Secretary of State
5
exercising customs functions;
(b)
immigration officers, and officials of the Secretary of State exercising
functions relating to immigration, asylum or nationality;
(c)
the Secretary of State in so far as the Secretary of State has general
customs functions;
10
(d)
the Secretary of State in so far as the Secretary of State has functions
relating to immigration, asylum or nationality;
(e)
the Director of Border Revenue and any person exercising functions of
the Director;
(f)
persons providing services pursuant to arrangements relating to the
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discharge of a function of a person mentioned in paragraphs (a) to (e).
(2)
Regulations under subsection (1) may—
(a)
in relation to Her Majesty’s Inspectors of Constabulary, apply (with or
without modification) or make provision similar to any provision of
sections 54 to 56 of the Police Act 1996 (c. 16) (inspection);
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(b)
in relation to the Scottish inspectors, apply (with or without
modification) or make provision similar to any provision of section 33
or 34 of the Police (Scotland) Act 1967 (c. 77) (inspection);
(c)
in relation to the Northern Ireland inspectors, apply (without or
without modification) or make provision similar to any provision of
25
section 41 or 42 of the Police (Northern Ireland) Act 1998 (c. 32)
(inspection).
(3)
Regulations under subsection (1)—
(a)
may enable a Minister of the Crown to require an inspection to be
carried out;
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(b)
must provide for a report of an inspection to be made and, subject to
any exceptions required or permitted by the regulations, published;
(c)
must provide for an annual report by Her Majesty’s Inspectors of
Constabulary;
(d)
may make provision for payment to or in respect of Her Majesty’s
35
Inspectors of Constabulary, the Scottish inspectors or the Northern
Ireland inspectors.
(4)
An inspection carried out by virtue of this section may not address a matter of
a kind which the Comptroller and Auditor General may examine under section
6 of the National Audit Act 1983 (c. 44).
40
(5)
An inspection carried out by virtue of this section must be carried out jointly
by Her Majesty’s Inspectors of Constabulary and the Scottish inspectors—
(a)
if it is carried out wholly in Scotland, or
(b)
in a case where it is carried out partly in Scotland, to the extent that it is
carried out there.
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(6)
In this section—
(a)
“the Scottish inspectors” means the inspectors of constabulary
appointed under section 33(1) of the Police (Scotland) Act 1967;

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(b)
“the Northern Ireland inspectors” means the inspectors of constabulary
appointed under section 41(1) of the Police (Northern Ireland) Act 1998
(c. 32).
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Complaints and misconduct
(1)
In section 41 of the Police and Justice Act 2006 (c. 48) (power to confer functions
5
on the Independent Police Complaints Commission in respect of the exercise
of immigration functions)—
(a)
after subsection (1)(b) insert—
“(c)
the provision of services pursuant to arrangements
relating to the discharge of a function within paragraph
10
(a) or (b).”, and
(b)
after subsection (2) insert—
“(2A)
The Secretary of State may make regulations conferring
functions on the Independent Police Complaints Commission
in relation to—
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(a)
the exercise by designated customs officials, and
officials of the Secretary of State, of customs functions
within the meaning of Part 1 of the Borders, Citizenship
and Immigration Act 2009;
(b)
the exercise by the Director of Border Revenue, and any
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person exercising functions of the Director, of customs
revenue functions within the meaning of that Part of
that Act;
(c)
the provision of services pursuant to arrangements
relating to the discharge of a function within paragraph
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(a) or (b).”
(2)
In each of subsections (4) and (7) of that section, after “subsection (1)” insert “or
(2A)”.
(3)
In the title to that section, after “functions” insert “and customs functions”.
Other provisions
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31
Prosecution of offences
(1)
The Attorney General may by order assign to the Director of Revenue and
Customs Prosecutions a function of—
(a)
instituting criminal proceedings in England and Wales,
(b)
assuming the conduct of criminal proceedings in England and Wales,
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or
(c)
providing legal advice,

relating to a criminal investigation of a kind specified in the order by a person
to whom this section applies.
(2)
This section applies to—
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(a)
designated customs officials,
(b)
immigration officers,
(c)
officials of the Secretary of State,
(d)
the Secretary of State,

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(e)
the Director of Border Revenue,
(f)
a person acting on behalf of a person mentioned in paragraphs (a) to (e),
and
(g)
constables.
(3)
For the purposes of the Commissioners for Revenue and Customs Act 2005
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(c. 11)—
(a)
functions assigned to the Director of Revenue and Customs
Prosecutions by virtue of this section are to be treated as functions of
the Director under or by virtue of that Act, and
(b)
proceedings conducted by the Director by virtue of this section are to
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be treated as proceedings conducted by the Director under that Act.
(4)
Sections 37 to 37B of the Police and Criminal Evidence Act 1984 (c. 60)
(guidance etc.) have effect, in relation to a person arrested following a criminal
investigation in relation to which functions are conferred by virtue of this
section, as if references to the Director of Public Prosecutions were references
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to the Director of Revenue and Customs Prosecutions.
(5)
An order under this section—
(a)
may include incidental, supplementary and consequential provision;
(b)
may make transitional or transitory provision or savings;
(c)
may be amended or revoked.
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(6)
The reference in this section to instituting criminal proceedings is to be
construed in accordance with section 15(2) of the Prosecution of Offences Act
1985 (c. 23).
(7)
In this section “criminal investigation” means any process—
(a)
for considering whether an offence has been committed,
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(b)
for discovering by whom an offence has been committed, or
(c)
as a result of which an offence is alleged to have been committed.
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Payment of revenue to the Commissioners
(1)
The Director of Border Revenue must pay money received by way of revenue
or security for revenue in the exercise of the Director’s customs revenue
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functions to the Commissioners for Her Majesty’s Revenue and Customs.
(2)
The Secretary of State must pay money received by way of revenue in the
exercise of the Secretary of State’s general customs functions to the
Commissioners.
(3)
A payment under subsection (1) or (2) must be made—
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(a)
at such times and in such manner as the Treasury directs, and
(b)
after deduction of payments in connection with drawback and
repayments.
(4)
If the Commissioners think that the funds available to the Director or the
Secretary of State may be insufficient to make a payment in connection with
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drawback or a repayment, the Commissioners may—
(a)
pay money to the Director or the Secretary of State (as the case may be)
to enable the payment or repayment to be made, or
(b)
make the payment or repayment on behalf of the Director or the
Secretary of State (as the case may be).
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(5)
Subsection (4) applies whether or not the reason for a deficiency is or may be
that an amount has been paid or retained on the basis of an estimate that has
proved or may prove to be inaccurate.
(6)
A payment by the Commissioners under that subsection is to be treated for the
purposes of the Commissioners for Revenue and Customs Act 2005 (c. 11) as a
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disbursement of a kind specified in section 44(3) of that Act.
(7)
In this section—
“repayments” includes—
(a)
payments in respect of actual or deemed credits relating to any
tax, duty or levy, and
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(b)
payments of interest (or repayment supplement) on—
(i)
repayments, or
(ii)
payments treated as repayments;
“revenue” means—
(a)
taxes, duties and levies,
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(b)
the proceeds of forfeitures made and penalties imposed under
the customs and excise Acts (within the meaning of section 1 of
the Customs and Excise Management Act 1979 (c. 2)),
(c)
a sum paid, or the proceeds of sale, under paragraph 16 of
Schedule 3 to that Act, and
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(d)
the proceeds of penalties imposed in accordance with
Regulation (EC) No 1889/2005 on controls of cash entering or
leaving the Community (including penalties imposed under
that Regulation as amended from time to time);
“security for revenue” means any sum paid as security for a tax or duty.
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Power to require payment into the Consolidated Fund
(1)
The Treasury may by order make provision for—
(a)
requiring the payment of sums received by the Secretary of State or the
Director in the exercise of their functions into the Consolidated Fund;
(b)
permitting the deduction of disbursements before such payments are
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made;
(c)
requiring the Secretary of State or the Director to provide accounts of
the receipt and disposal of revenue;
(d)
permitting the Treasury to make payments to the Secretary of State or
the Director out of the Consolidated Fund to enable them to make
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disbursements.
(2)
An order under this section may amend or repeal section 32 (payment of
revenue to the Commissioners).
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Children
(1)
In section 21 of the UK Borders Act 2007 (c. 30) (code of practice relating to
40
children), in subsection (1), for “the Border and Immigration Agency takes”
substitute “the persons listed in subsection (4A) take”.
(2)
In subsection (2) of that section—
(a)
for “The Agency” substitute “Those persons”,
(b)
in paragraph (a), for “its” substitute “their”, and
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(c)
in paragraph (b), for “it makes” substitute “they make”.
(3)
After subsection (4) of that section insert—
“(4A)
The persons are—
(a)
designated customs officials, and officials of the Secretary of
State exercising customs functions,
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(b)
immigration officers, and officials of the Secretary of State
exercising functions relating to immigration, asylum or
nationality,
(c)
the Secretary of State in so far as the Secretary of State has
general customs functions,
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(d)
the Secretary of State in so far as the Secretary of State has
functions relating to immigration, asylum or nationality, and
(e)
the Director of Border Revenue and any person exercising
functions of the Director.”
(4)
In subsection (5) of that section omit paragraph (a).
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(5)
After that subsection insert—
“(5A)
In this section “customs function”, “designated customs official” and
“general customs function” have the meanings given by Part 1 of the
Borders, Citizenship and Immigration Act 2009.”
(6)
This section ceases to have effect on the coming into force of section 57 (duty
20
regarding welfare of children).
Supplementary
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Power to modify enactments
(1)
The Secretary of State may by order provide for an enactment (or a description
of enactments) to apply in relation to—
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(a)
relevant persons, or
(b)
the exercise of functions by relevant persons,
with such modifications as the Secretary of State considers necessary or
expedient.
(2)
In this section—
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(a)
“relevant persons” means—
(i)
the Secretary of State by whom general customs functions are
exercisable,
(ii)
the Director of Border Revenue, and
(iii)
designated customs officials, immigration officers and officials
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in the department of that Secretary of State, and
(b)
a reference to relevant persons includes a reference to any description
of relevant persons.
(3)
An order under this section may, in particular, include provision for or in
connection with—
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(a)
extending to relevant persons an exemption or protection afforded by
an enactment to any other description of persons;
(b)
providing for the disclosure of information to, or the doing of other
things in relation to, relevant persons.

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(4)
The Secretary of State must consult the Commissioners for Her Majesty’s
Revenue and Customs before making an order under this section that—
(a)
makes provision in relation to a general customs matter or a customs
revenue matter, or
(b)
makes provision in relation to the exercise of a customs function.
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Power to make supplementary etc. provision
(1)
The Secretary of State may by order make—
(a)
such incidental, supplementary or consequential provision, or
(b)
such transitional or transitory provision or savings,

as the Secretary of State considers appropriate for the general purposes, or any
10
particular purpose, of this Part, or in consequence of, or for giving full effect to,
any provision made by or under this Part.
(2)
An order under subsection (1) may amend, repeal, revoke or otherwise modify
any enactment (including this Act).
(3)
The power to make an order under subsection (1) includes power to repeal or
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revoke an enactment which is spent.
(4)
Nothing in this Part affects the generality of the power conferred by this
section.
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Subordinate legislation
(1)
Orders and regulations under this Part must be made by statutory instrument.
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(2)
An order or regulations under this Part may—
(a)
include incidental, supplementary and consequential provision;
(b)
make transitional or transitory provision or savings;
(c)
make different provision for different cases or circumstances.
(3)
A statutory instrument containing an order or regulations to which subsection
25
(4) applies may not be made unless a draft of the instrument has been laid
before, and approved by a resolution of, each House of Parliament.
(4)
This subsection applies to—
(a)
an order under section 2 (power of Secretary of State to modify
functions);
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(b)
an order under section 8 (power of Treasury to modify Director’s
functions);
(c)
regulations under section 16(8) (power to permit disclosure);
(d)
an order under section 23 (application of provisions about
investigations and detention: England and Wales and Northern
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Ireland);
(e)
an order under section 35 (power to modify enactments);
(f)
an order under section 36 (power to make supplementary etc.
provision) that amends or repeals primary legislation.
(5)
A statutory instrument containing only—
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(a)
regulations under section 29 (inspections by Her Majesty’s Inspectors
of Constabulary etc.), or

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(b)
an order under section 36 that does not amend or repeal primary
legislation,

is subject to annulment in pursuance of a resolution of either House of
Parliament.
(6)
A statutory instrument containing an order under section 33 (power to require
5
payment into the Consolidated Fund) is subject to annulment in pursuance of
a resolution of the House of Commons.
(7)
In this section “primary legislation” means—
(a)
an Act of Parliament,
(b)
an Act of the Scottish Parliament,
10
(c)
a Measure or Act of the National Assembly for Wales, or
(d)
Northern Ireland legislation.
(8)
This section does not apply to an order under section 31 (prosecution of
offences).
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Interpretation
15
In this Part—
“customs function” has the meaning given by section 14(6);
“customs information” has the meaning given by section 14(6);
“customs revenue function” has the meaning given by section 7(9);
“customs revenue information” has the meaning given by section 14(6);
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“customs revenue matter” has the meaning given by section 7(2);
“customs revenue official” means a customs revenue official designated
under section 11(1);
“designated customs official” has the meaning given by section 14(6);
“enactment” includes—
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(a)
an enactment contained in subordinate legislation within the
meaning of the Interpretation Act 1978 (c. 30);
(b)
an enactment contained in, or in an instrument made under, an
Act of the Scottish Parliament;
(c)
an enactment contained in, or in instrument made under,
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Northern Ireland legislation;
(d)
an enactment contained in, or in an instrument made under, a
Measure or Act of the National Assembly for Wales;
“function” means any power or duty (including a power or duty that is
ancillary to another power or duty);
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“general customs function” has the meaning given by section 1(8);
“general customs matter” has the meaning given by section 1(2);
“general customs official” means a general customs official designated
under section 3(1);
“personal customs information” has the meaning given by section 15(4);
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“personal customs revenue information” has the meaning given by
section 15(4);
“relevant official” has the meaning given by section 15(3).