Mr.
Woolas: —clause 5 to reflect the new definition of
“general customs functions”, which we are discussing in
clause 1. Amendment 22 is similar in its purpose and effect to
amendments 18 and 19. It amends clause 7 to clarify the extent of the
customs revenue functions which may be exercised by the director of
border revenue and customs revenue officials. Amendments 23, 24
and 25 are consequential to amendment 22 and change
respectively clauses 9, 10 and 13 to reflect the new definition in
clause 7 that I just referred to. Amendment 26 is related to the other
amendments in this group. It clarifies that clause 26—which
provides for transfer schemes to be made by HMRC—applies to
things done by the Secretary of State, director of border revenue or
designated customs officials in connection with the relevant function
as previously exercised by the commissioners or an officer of Revenue
and Customs including things done under Community law.
Amendment 29
amends clause 38 to provide interpretation for the term Community law
for the purposes of part 1 of the Bill. That interpretation is
necessary, I am advised, to make clear the meaning of that term which
is now used in clauses 1 and 7 as a result of amendments 18, 19 and 22.
In short, in order to transfer the powers of customs to the new set-up,
the new agency—the Secretary of State, the director of border
revenue, who we propose to be the chief executive officer of the UK
Border Agency, and designated officials under her—we need
clarity in the definition of those powers, and that is what the
amendment
brings. If
I may, Sir Nicholas, I would like to ask the Committee to consider the
arguments on amendment 15. The hon. Member for Ashford will explain
what he is trying to do here better than I can, but removing designated
customs officials from the definition of a relevant function, for the
purposes of the transfer of the scheme’s provisions in clause
26, would not achieve what we want to see. Clause 26(7) defines a
relevant function
as: “A
function conferred by...this Part on the Secretary of State, the
Director or a designated customs
official”. Under
the amendment, a transfer scheme could not operate so as to transfer
things done by the commissioners or revenue and customs officers in
relation to functions conferred by the Bill on designated customs
officials. Proceedings on other matters done or started by an officer,
such as seizure actions, could not be treated as done and continued by
a designated customs officer. The scheme would only work, therefore, in
respect of functions transferred to the Secretary of State or the
director of border revenue, rather than their officers.
I hope I have
explained the purpose of the amendments as clearly as possible. At this
early stage of the Bill’s proceedings I ask for the trust of the
Committee and
will try to clarify any explanation that I may have inadequately given.
However, I assure you, Sir Nicholas that the amendments result from a
very deep consideration of the points made in the other place. I
therefore urge the Committee to support the Government amendments and
to consider the argument of the hon. Member for Ashford on amendment
15. Damian
Green: I thank the Minister for that tour de force of
clarity in the face of some opposition from the words in front of him.
I was remiss in not congratulating him on still sitting there and
retaining his post, in the light of recent events. Whether he is as
delighted as I am still to be there —[Interruption.] I
apologise, Sir Nicholas. If it is any consolation to the Committee, it
was my wife. I
apologise.
The
Chairman: I am glad the mobile phone was on
silent—ish.
Damian
Green: Ish. Moving swiftly on, Sir Nicholas.
Before I
address the detail of what the Minister said, I would like to return to
the point I raised in my intervention. The Minister said that the draft
Bill, of which this Bill was a small part, will now become the
simplification Bill. I am genuinely puzzled and hope that in the course
of our discussions he can explain the purpose of introducing the
simplification Bill, which we know is hundreds of clauses long and very
complex, at this stage of the parliamentary cycle where, whatever
happens, it is extremely unlikely to complete its course before a
general election that has to take place by May or June of next year. It
seems a bizarre use of parliamentary
time.
Mr.
Woolas: That is because we are going to
win.
Damian
Green: The Minister says from a sedentary position that
the Labour party is going to win the next election. The British people
will decide, as they did last week. He knows that if Parliament is
dissolved the Bill will fall, and even if he is still sitting there in
a year’s time, he will have to reintroduce it. I am genuinely
puzzled as to what the organisational purpose is of introducing it
now. Before
I test your patience any longer, Sir Nicholas, let me turn to the
Conservative amendments and the many Government amendments. On looking
at the amendment paper, the Committee might reasonably have been
disturbed to find 10 Government amendments to clause 1 of this
Government’s eighth immigration Bill. That does not build
confidence, and I was even more exercised by the papers from outside
lobby groups and others, in which one of the first amendments proposed
to Opposition parties was to delete the whole of part 1. I had felt
that this was one of the less controversial parts of the Bill, yet
there are those outside who wish the whole part deleted, and the
Government have tabled multiple amendments to their own
legislation.
It is not as
alarming as all that, as some of the amendments clearly derive, as the
Minister has said, from some good debates in another place. We should
be grateful to their lordships for the scrutiny they have applied to
the Bill, and from which this group of amendments derives. I am
particularly glad that in this instance Ministers appear to have
listened to their lordships, because I think that some of the more
contentious
debates that we will have in Committee will arise from the Government
trying to reverse the votes taken in another
place. As
the Minister has made clear, this group of amendments deals with the
extension of the powers of customs officers and immigration officers
and the proper way to exercise those powers. We are talking about the
general customs function and it is reasonable to ask for a substantial
explanation of that function. It was the focus of much of the debate in
another place, and the Minister has struggled manfully with that.
Government amendment 19 in particular, however, seems to be close to
saying that a general customs function is what Ministers say it
is: “a
function that is
exercisable— (i)
by the Secretary of State by virtue of this section,
or (ii)
by general customs
officials”. That
is to say, that one can tell that it is a general customs function
because it is being exercised by customs officials. I feel that that is
never an entirely satisfactory way of defining something in
legislation. It is not immediately clear what functions would be
included or excluded from the range of general customs functions by way
of the amendment. This is the right part of the Bill in which to ask
these questions, and perhaps to ask the Minister to state, when he sums
up, what general customs functions he is talking about, in practical
terms. I am sure that we could all sit down and make a list of what we
think general customs functions would be, but it would be extremely
useful to have that on the record. I encourage the Minister to make
clear reference to the functions for the commissioners for Revenue and
Customs, and to tell us which functions should be included or excluded
from the general customs functions—general customs matters, as
they are referred to elsewhere in the
Bill. One
of the reasons why it is important to establish great clarity at this
stage is that we should be clear that the amendments give extra powers
to the Secretary of State, and through him to immigration officials.
The question of whether those powers are exercised by appropriately
trained people lies at the heart of the debate about the changes within
the UK Border Agency and HMRC. To some extent, there is no great divide
across the House on that. We agree that there has been too great a
diversity—an incoherence, indeed—of people with powers at
the border, and we all want more cross-cutting powers. As the Committee
will discuss later, the Conservatives favour a proper integrated border
police force so that the powers will be exercised by trained police
officers, which would help to alleviate the problem. Before we get to
that, however, when powers are being shared and spread around, as they
will be under the amendments, it is legitimate to ask about the new
functions and the new powers that they represent, and about who will be
exercising those powers.
11
am Effectively,
the customs officials’ powers, which are extremely broad, are
being shared out to immigration officers. As the Minister will be
aware, customs officials can undertake a very wide range of extremely
intrusive activities. The Customs and Excise Management Act
1979 confers many of those functions and powers. Under that Act, a
customs officer may ask to search a person or anything they have with
them if he or she reasonably
suspects that the person is carrying any item that is prohibited or
restricted, or any item that is liable to excise duty or tax that has
not been paid. Furthermore, officials have the power to detain a person
for as long as is reasonably necessary while the search is being
carried out. If a person does not agree to that search, a customs
official may make an arrest. I am going into detail because it is worth
the Committee considering the full extent of the powers that customs
officials have when they are being shared
around. The
threshold for the reasonable suspicion that a customs officer needs to
have is very low and can include a combination of factors, including
the origin of a person’s journey, their clothing and any unusual
quantity of luggage. The threshold is low and the intrusive powers are
great. Searches can include searches of pockets, a rub-down, a strip
search or an intimate search. The powers available to customs officers
also include forfeiture powers, powers to enter premises, and powers of
search and seizure. This measure extends those powers to UKBA staff,
who will be able to carry out physical examinations at the frontier,
both of their own volition and at the direction of HMRC.
On top of
those things, customs officials have the capacity to take fingerprints
and DNA, and they can seize money under the Proceeds of Crime Act 2002.
They have surveillance powers under the Regulation of Investigatory
Powers Act 2000 and data acquisition and sharing powers under the
Identity Cards Act 2006, the UK Borders Act 2007 and the Serious Crime
Act 2007.
At this stage
of our proceedings, we ought to have some kind of reassurance from the
Minister that the extension of the powers, which are very extensive and
intrusive, is being handled properly and that they are being extended
to people who are properly trained and equipped to deal with them. I
hope that the Minister addresses in detail whether the clause could
provide that the extension does not apply to section 164 of the Customs
and Excise Management Act 1979, which allows customs officers, and
therefore, one would assume, immigration officers, the powers to
undertake intimate
searches. A
number of other customs powers appear not to bear any relationship to
immigration, and it is legitimate to ask the Minister whether they
should have been exempted or why they are necessary for the proper
control of immigration. The idea of greater coherence is good in
principle, as I said, and obviously it almost goes without saying that
Members on both sides of the Committee want a better controlled
immigration system. However, I have genuine worries, as do others,
about some of the details and the possible spread of powers to people
who are not properly trained in exercising
them. I
tabled amendment 15 to probe the Government’s intentions. It
would restrict the power of the Secretary of State or the director of
border revenue to designate any official to carry out those customs
functions. The Minister has already said that he does not accept the
amendment as he thinks that it would be unduly restrictive. I accept
that it is designed to be restrictive, but it was tabled precisely to
explore the full extent of the extension and sharing of power that he
proposes. I am sure that he will accept that that point applies not
only to the clause and the amendments, but to the whole of part 1.
While we proceed along this path—which we both
agree
is one we should go down—it is all the more important to ensure
that we do not extend intrusive powers unnecessarily, as there are
important matters of civil liberties to consider. In principle,
the Conservative party believes that there is not enough coherence
between the many agencies that currently operate at our borders. The
Government have been anxious for a couple of years to look as though
they are setting up a single border force. They do not actually seem to
be doing so, but I suppose that we should count our blessings where we
can. The fact that the Government seek to move in that direction is
better than the reverse would be. In that context, we are not hostile
in principle to the Government’s intentions in the clause, but I
would welcome the clarifications that I have sought from the Minister
about the detailed practical effects of the general customs function,
and of the extension of powers proposed in his
amendments.
Tom
Brake: I support the general principle behind what the
Government seek to achieve by better integrating aspects of customs and
immigration. The Liberal Democrat party favours a UK border force
similar to that advocated by the Conservative spokesman, but we would
also combine police powers. However, we are supportive of the general
principle behind what the Government seek to do.
Like the hon.
Member for Ashford, we have concerns about the extent to which general
customs functions are being extended. He did a good job of outlining
the powers available to customs officers and noting the reasons why
there need to be suitable safeguards in place and training available. I
hope that the Minister will be specific about what grade of officers
will have those powers and whether the level of training that they
receive will be comparable to that provided to customs officers. I hope
that hon. Members will get some reassurance that the people who take on
these extensive—and in some cases intrusive—powers, will
be suitably qualified for the job.
I support the
description given by the hon. Member for Ashford of amendment 15 as a
general probing amendment designed to get the Government to be more
specific in explaining how the powers will be extended and the extent
to which that is happening. I hope that hon. Members can have some
reassurance that the provision is within the spirit of what we are all
trying to achieve, but does not provide extensive powers that we would
feel uncomfortable with should they be exercised by people who were not
suitably trained, or who had powers beyond what would be considered
acceptable. I shall listen carefully to the Minister’s response,
particularly in relation to amendment 15, and hope that it is
satisfactory.
Mr.
Woolas: Those questions were entirely reasonable, and some
were powerful. I shall try to answer them.
First, I must
make it clear that we are talking about general customs functions, as
distinct from customs revenue functions. The revenue functions,
established under HMRC, have a relationship to Ministers that is
different from general customs functions, which we shall deal with
under clause 6 and elsewhere. Ministers cannot be involved in customs
financial revenue functions, just as we cannot be involved in Inland
Revenue functions. That is quite right, and I hope that it always
remains so.
The director
of border revenue, whom we propose to be the chief executive of
UKBA—the “accountable officer” is a phrase with
which Members will be familiar—would deal exclusively with
customs revenue functions such as the collection and enforcement of
excise duties on imported alcohol and tobacco, the collection and
enforcement of customs duties more generally, import VAT, and the
prevention of smuggling of goods liable to VAT and excise and customs
duties.
The hon.
Member for Ashford asked me to give some examples of what is meant in
the real world by general customs. Seizing criminal cash is a common
function. Others include preventing unsafe products being imported into
the UK; maintaining sanctions on countries and arms embargos; reducing
and deterring trade in endangered species of animals and plants;
control of commercial vessels and ships coming into our ports;
preventing the importation of offensive weapons such as knives, daggers
and so on; preventing the importation of obscene or indecent material,
particularly child pornography; preventing the introduction of pest and
diseases harmful to animals and/or humans, such as foot and mouth, bird
flu and fowl plague; preventing the import and export of controlled
drugs; and preventing chemical weapons, toxic chemicals and so on from
coming into the UK and being obtained by terrorist organisations. That
is not an exhaustive list, but they are the main headings under the
general customs
functions. Few
new powers are given under part 1. Those powers mentioned are existing
customs powers. The hon. Member for Ashford got the point about UKBA,
but he is right that the powers, if designated to officials, will
include what are currently the powers of immigration officers. I have
answered his question directly.
The Secretary
of State already has the power to put in place effective border
controls relating to immigration matters, and although the
Bill’s provisions extend the functions of the Home Secretary to
include the general customs matters that I have listed, they do not
create new substantive powers. Instead, the provisions simply allow the
exercise of existing powers by the Home Secretary and his officials
rather than by Her Majesty’s Revenue and Customs. More
importantly, and to reassure the Committee, they do not result in any
loss of border control powers when transferring functions from Revenue
and Customs to the Border Agency.
On the
specific point being quietly pushed by the hon. Members for Ashford and
for Carshalton and Wallington, immigration officers at ports—I
include airports in that—have a wide range of powers to operate
immigration control and tackle immigration-related crime. Part of our
strategy is exactly to use immigration powers to tackle
immigration-related crime. It is what inside UKBA we call the Elliott
Ness strategy, and very effective it is,
too. 11.15
am
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