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Division
No.
2]
Question
accordingly negatived.
4.45
pm Clause
20 ordered to stand part of the
Bill. Clause
21 ordered to stand part of the
Bill.
Clause
22Application
of the PACE
orders
Damian
Green: I beg to move amendment 13, in
clause 22, page 17, line 25, at
end add— ‘(10) In the
application of PACE orders by virtue of this
section— (a) no person
may be detained in an office of the UK Border Agency which has not been
designated as a police cell for a period exceeding three
hours; (b) no person may be
detained in a police cell under powers granted to the UK Border Agency
for more than five
days.’. The
purpose of the amendment is to enable us to have a serious discussion
about the application of the rules under the Police and Criminal
Evidence Act 1984 because they are to be extended. In the last
knockings of our previous debate, the Minister said indirectly that a
lot of what is happening in this part of the Bill involves extending
police powers to non-police officers, so we must carefully consider the
extension of the protection from police action that we provide under
PACE. We seek in the amendment to make specific suggestions, and to
open up that area of debate. The Minister and I agree that the
protection and powers that are given to the police under PACE must be
carefully considered if they are to be extended to officers who have
their own competences but are not police
officers. We
suggest that no one should be detained in an office of the UK Border
Agency that has not been designated as a police cell for a period
exceeding three hours, and that no person may be detained in a police
cell under powers granted to UKBA for more than five days. There is a
degree of consensus about the need for a code of practice and strict
guidelines about what happens to those who are kept in short-term
detention under the terms of the Bill. When somewhere is designated a
police cell, different rules apply, and it is worth discussing the
wider point and whether the application of PACE powers to all customs
officers is necessary and desirable. I hope that the Minister will
address that large number of issues when he responds.
As the
Minister and the Committee know, PACE and the accompanying codes of
practice provide the core framework for police powers and safeguards in
all police activities that are being adopted by UKBA
officers—stop-and-search, arrest, detention, investigation,
identification and interviewing detainees. The eight codes of practice
cover the range of powers and are directly relevant to the powers given
by this clause, ranging from the initial arrest or stop, the search of
premises, the
requirement for detention and treatment, and recordings. It is not new
for PACE powers and restrictions to be given to immigration officers;
that has been happening since the Immigration and Asylum Act 1999. The
Minister will be aware that there has been great and legitimate debate
about the extent to which those powers have been exercised and he will
know that interested parties, such as the Immigration Law Practitioners
Association, the immigration lawyers lobby group, argue that the powers
under PACE have been underused. It argues, and I am not sure that I
would go all the way with it on this, that the powers should be
supported by a duty to use them. That is worth discussing, but I am not
suggesting it with this
amendment. It
has been suggested that the Minister’s undertaking to make
orders under the 1999 Act did not go far enough. Other bodies, such as
the Equality and Human Rights Commission, have said that there are
potential human rights implications by leaving that in the Secretary of
State’s discretion. The Joint Committee on Human Rights has also
welcomed the application of the PACE safeguards to investigations
conducted and persons detained by immigration officers and customs
officials, although the Committee said that they thought that the
Government’s intentions were still more limited than they
would have
liked. There
is a lot of outside unease and suggestions have been made about how to
balance the enforcement capacity, which needs to be effective, and the
protection of those being detained. The Minister will be aware that the
Government proposed amendments to clause 22 in the other place.
Those would have applied PACE and the equivalent order for Northern
Ireland to designated customs officials who exercise equivalent
functions as HMRC officials. The Government’s amendment allowed
certain safeguards contained in the orders to apply to criminal
investigations conducted by immigration officers and customs officials
in relation to a general customs or customs revenue matter and to the
persons detained by such immigration and customs officials. To an
extent, so far so good, and that was welcomed in the other place. The
problem is that the effect of those Government amendments to clause 22
has been diluted by including the ability to amend or repeal the clause
by order under clause 23, which gives a broad power to disapply
the safeguards contained in the HM Revenue and Customs
order. Liberty,
among other organisations, suggests that the improvements and more have
been washed away by that wide-ranging power. The safeguards provided by
PACE therefore are now not adequately reflected in the Bill. Liberty
says that they would not be aware if the Secretary of State had applied
the safeguards in PACE to immigration officials. It argues, and I would
like to hear the Minister’s response to
this: “Giving
the Secretary of State only the power to apply PACE provisions is
unsatisfactory where the extension of intrusive powers is proposed. If
this reform goes ahead, at the very least, a requirement for PACE
protections must be fully incorporated into primary
legislation.” It
is a debate worth having now, although we can consider it at other
stages. Liberty has given evidence to the Home Affairs Committee
expressing its concerns about extending traditional policing powers to
non-policing bodies. I am pleased that even Liberty says that
“sometimes that
may be necessary in a certain context”,
because it is necessary
in a certain context. Those of us who have argued for greater coherence
in our border enforcement agencies have to accept that point. However,
if we extend powers that were once available only to the police, the
safeguards that we impose on the police need to be imposed on other
people—the Minister is looking perplexed—not just at the
discretion of the Secretary of State, but permanently. It is not about
the current Secretary of State; essentially, the argument is about
whether to trust any Secretary of State to be the guarantor of the
protections that one would
want. I
draw the Minister’s attention to another point made by ILPA
about aspects of short-term detention covered by clause 22 and the need
for a clear code of practice. ILPA argues that turning police cells
that are used occasionally to detain people under immigration powers
into short-term holding facilities for the purposes of the immigration
Acts could have “bizarre and unwanted consequences”. The
short-term holding facilities are meant to have visiting
committees—independent monitoring boards—and specific
rules that apply in all such facilities, regulating such things as
management and the welfare of detainees. ILPA points out that custody
sergeants will not welcome their cells being bound by such rules. If
the rules do not apply to those held in such facilities, to whom do
they
apply? Like
me, the Minister will have read the Lords debates carefully and will be
aware that his equivalent, Lord West, said that either he was confused
or the position was confusing. The noble Minister was right in his
analysis: the position is confusing. He wrote a letter, but it did not
appear until after the Lords Report stage, so this is the first chance
that either House has had to debate the issue properly. I am conscious
that the Government want the flexibility to hold people in short-term
holding facilities, particularly under customs powers. However, as it
stands, the legislation has wider consequences than have been
considered, certainly wider than those considered in another place.
There is a large fog of confusion that I hope the Minister can
dispel. To
avoid the possibility of adding to the confusion, let me be clear: we
do not object to the extension of PACE to officers, but we are
concerned that the officers should be in the position of the police,
which, effectively, they are. We know that PACE already applies to
immigration officers because they have the power of arrest. Therefore,
as we are extending the power of arrest to others, PACE should apply as
well. That safeguard ensures that people are dealt with properly and
protected by codes of conduct and practice. It is about balance. It is
a Pandora’s box: the lid has been lifted and some fairly unusual
and potentially unpleasant things are flying out. Yet again, I seek
ministerial reassurance on all of
that. 5
pm
Tom
Brake: I welcome the opportunity to debate an area of the
Bill that we have not touched on so far. Amendment 13 refers to the
application of PACE orders in relation to UKBA activities and also the
period of detention. On the latter point, as the hon. Member for
Ashford has set out on behalf of the Conservatives, there clearly was a
great degree of confusion around the period of detention. As he stated,
the matter was not
resolved until after the passage through the House
of Lords and the letter that was provided by Lord West of Spithead,
which I imagine Members have seen. It underlines exactly how complex
the situation is in relation to detention, and one must have concerns
about the ability of those who will be required to manage the system to
ensure that matters are followed appropriately. The flow chart that was
provided at the end of the letter is of some assistance in working out
what applies where. Other Members may have seen it; the split between
PACE and not-PACE activities is identified. I suspect that the
complexity
remains. As
the hon. Member for Ashford said, the application of PACE is entirely
appropriate in the circumstances in which immigration officers will be
working. I am sure that other members have received ILPA’s
briefing. Back in 1999 Lord Williams of Mostyn promised us that PACE
codes of practice would be adapted and introduced to cover immigration
officers in the exercise of their police-like powers. However, I think
it is true to say that we still await that. This is clearly an
opportunity to debate it and perhaps secure from the Minister some
promises about the circumstances in which PACE will apply and what
further extensions he may be considering.
Mr.
Woolas: I am very grateful for an interesting debate
sparked off by reference to Lord Williams of Mostyn. I congratulate the
hon. Gentleman on that point. Let me give him the reassurances that he
seeks and answer the questions that have been raised in the
debate. Let
me set out the Government’s intent regarding clauses 22 and 23.
We have to look at those together. Should the House give Royal Assent
to the Bill, clause 22 ensures that PACE protections
transfer immediately to UKBA and specifically those customs officers
within it. Clause 23 allows the creation in future of a comprehensive
framework for UKBA, including immigration. Clause 22
currently creates the framework only for designated customs officials
transferring to UKBA. In other words, that is a power that is already
there for customs officials upon formal transfer to the agency. If the
House accepts it, clause 22 provides that cover for designated customs
officials. Clause 23 sets up the longer-term framework. We have to see
the two in that
regard. Let
me outline the purpose of the clause and the difficulties we have with
the amendment, and then briefly answer the specific questions. As has
been said, we are talking about the Police and Criminal Evidence Act
1984, and for Northern Ireland the Police and Criminal Evidence
(Northern Ireland) Order 1989—which I will call PACE (Northern
Ireland)—and the associated codes of practice that come with
them. Many of those provisions in PACE and PACE (Northern Ireland) are
already relevant to the exercise of criminal investigation functions by
officers of Her Majesty’s Revenue and Customs. Those provisions
are applied, in appropriately modified form, to any criminal
investigation and to any person detained by an officer of HMRC. That is
achieved by means of the Police and Criminal Evidence Act 1984
(Application to Revenue and Customs) Order 2007—in other words,
the House has already looked at that point for the situation inside
HMRC—and the Police and Criminal Evidence Act 1984 (Application
to Revenue and Customs) Order (Northern Ireland) 2007. For the purposes
of the debate, I shall call these orders “the Revenue and
Customs PACE orders”.
The provisions
applied to HMRC officers include powers used for the investigation of
revenue and customs offences at the frontier and elsewhere, and for the
designation of custody suites and custody officers. They also impose
relevant obligations on officers to safeguard anybody that they detain,
as one would expect. Of course, we need to ensure that, as the
designated customs officials of the border force will in future be
investigating and detaining people for the same offences and exercising
the same functions at the border as officers currently do for HMRC,
they have the same powers and are required to provide the same
safeguards to those that they detain.
Therefore, it
is our intention that the substantive provisions of the Revenue and
Customs PACE orders should apply in future to criminal investigations
of customs matters conducted, and persons detained, by the designated
customs officials of the UK Border Agency. However, clause 22 does not
apply all the provisions in the Revenue and Customs PACE orders. Some
of them, such as the powers relating to production orders in tax
investigations, will not be required by UKBA, so it would not be
appropriate to apply them.
In summary,
clause 22 effectively applies the vast majority of the provisions of
the Revenue and Customs PACE orders to criminal investigations and to
persons detained by designated customs officials of UKBA, who will in
future exercise enforcement functions in situations of the type where
those functions are currently exercised by HMRC.
We intend
that there will be a seamless application of PACE to the designated
officials, particularly those who are transferring over, until a
further bespoke PACE application order is made directly in relation to
UKBA’s customs and immigration functions, under clause 23 of the
Bill.
Regarding the
amendments that have been tabled, I again want to congratulate the hon.
Member for Ashford on his powers of scrutiny. The situation is that
UKBA has, of course, a dual function, to tackle criminality and to
regulate immigration. It uses criminal powers to arrest and
administrative powers to detain. Limiting to three hours the period for
which a person may be detained following arrest would prevent the
agency from dealing with straightforward cases in the most effective
manner, which would add costs for transporting prisoners and create an
additional burden on local police stations in a way that I suggest
Members of Parliament would not wish to see. It would also create an
unjustifiable inconsistency with other law enforcement bodies, such as
Revenue and Customs or the police, in respect of persons detained
following arrest in identical circumstances under the provisions of
PACE but applied elsewhere.
Where a
person has been arrested in relation to a criminal offence by an
officer of UKBA and is being detained in a police station, that
detention is regulated by the time scales provided in PACE and by the
relevant codes of practice, to pick up on the point that was made
earlier. The same procedure is followed by officers of HMRC and the
police.
The amendment
seeks to limit to five days the period for which a person may be
detained by the agency under administrative arrangements in a police
cell but not under criminal powers. Under the powers of the Immigration
Act 1971, a person may be detained by a UKBA officer pending further
examination, removal or
deportation. The places where a person may be detained under these
powers of detention are set out in the Immigration (Places of
Detention) Direction 2009, made under section 18 of the 1971 Act, which
include police stations. That direction already limits to five days the
period for which a person may be detained in a police station under the
border agency’s administrative powers. That period may only be
extended for a further two days if the person concerned is to be
removed from the United Kingdom within that two-day period. The
amendments proposed are, therefore, disproportionate. Paragraph (a)
creates inconsistency with the existing PACE framework and, as a
result, limits operational effectiveness without good cause. Paragraph
(b) imposes a time scale for administrative detention that already
exists in secondary legislation. Again, what we are doing here is
transferring over what already exists. There may be arguments about
that, but to change them within this clause would create
inconsistencies across the agencies and would, therefore, be
undesirable. | 
