Damian
Green: I thank the Minister for that very full and
startlingly clear exposition of the PACE rules as they apply in these
particular circumstances. I take his point about the inconsistency.
What I was seeking to do—and I think that I was
successful—was to provoke a full and proper discussion of the
importance of the appropriate application of the PACE rules to new
types of officers who now have quasi-police powers. We have seen what
has happened with those powers, and seen the PACE safeguards being
applied to immigration officers since the Immigration and Asylum Act
1999. Clearly, with greater numbers of officers having such powers in
the future, it will be increasingly important that the protections are
applied properly. I hope that the Minister accepts that
questions remain over the appropriateness of allowing the Secretary of
State to be the person who has the power to decide on whether or not to
apply the safeguards. It may be that that is another imbalance in the
system. With that significant caveat, I beg to ask leave to withdraw
the
amendment. Amendment,
by leave,
withdrawn. Clause
22 ordered to stand part of the
Bill.
Clause
23Investigations
and detention: England and Wales and Northern
Ireland
Damian
Green: I beg to move amendment 14, in
clause 23, page 18, line 6, leave
out subsection (5) and
add— ‘(5) A designated
immigration officer or a designated customs official at a port in
England, Wales or Northern Ireland may detain an individual if the
immigration officer thinks that the
individual— (a) may be
liable to arrest by a constable under section 24(1), (2), or (3) of the
Police and Criminal Evidence Act 1984 (c. 60) or Article 26(1), (2) or
(3) of the Police and Criminal Evidence (Northern Ireland) Order 1989
(S.I., 1989/1341 (N.I. 12)),
or (b) is subject to a warrant
for arrest. (6) A designated
immigration officer who detains an
individual— (a) must
arrange for a constable to attend as soon as is reasonably
practicable;
(b) may search the individual for, and retain,
anything that might be used to assist escape or to cause physical
injury to the individual or another
person; (c) must retain
anything found on a search which the immigration officer thinks may be
evidence of the commission of an offence;
and (d) must, when the
constable arrives, deliver to the constable the individual and anything
retained on a search. (7) A
designated immigration officer may use reasonable force for the purpose
of exercising a power under this
section. (8) Where an
individual whom a designated immigration officer has detained or
attempted to detain under this section leaves the port, a designated
immigration officer
may— (a) pursue the
individual, and (b) return the
individual to the port. (9)
Detention under this section shall be treated as detention under the
Immigration Act 1971 (c. 77) for the purposes of Part 8 of the
Immigration and Asylum Act 1999 (c.
33).’. I
am tremendously confident of a positive response from the Minister on
this amendment because it comes word from word from his draft Bill, so
I am not seeking to make the Government do anything that they did not
want to do themselves last summer. No doubt had they had the
legislative time, we would have been debating this with the Minister
proposing it rather than me. Being always fair-minded in my opposition,
I am sure that I would not have been proposing any amendments to it.
The amendment fits very well with the existing Bill. Clearly, there
were large parts of the draft Bill that are in other parts of the
immigration field and would sit very strangely in this Bill. I believe
that this amendment rounds off the existing clause rather effectively.
It inserts a number of new sections, which describe why a designated
immigration officer may detain an individual. It also sets out the
rules about how the designated immigration officer should arrange for a
constable to attend, carry out searches, retain any material taken and
deliver to the constable what has been taken from the individual. It
would allow reasonable force and allow the immigration officer to
pursue the individual, and return the individual to the
port. 5.15
pm Given
that thousands more people will have those potential powers, it is
important that we set out the rules regarding detention at port.
Indeed, I am slightly surprised that that segment of the draft Bill did
not survive, because it seems to fit very well with this part of the
Bill and it fits seamlessly into clause 23, which is about immigration
and detention. The amendment makes specific the debate that we have
just had about the application of the PACE rules and safeguards. In
themselves, they are very important, but it would make them more real
and bring home as a practicality what we mean when we talk about a
rigorous code of practice and conduct for officers at the
border. Even
if we accept—we never have done—the Minister saying that
amendment 13 would introduce some inconsistencies into the application
of the PACE rules, amendment 14 certainly would not. It sets out the
sort of powers and protections that are available already in such
legislation, so it genuinely would provide great confidence to those
who have doubts about the appropriateness and powers of the protection
that is
available. These are specific. They would be in the
Bill. People would know where they stood. They would know, first, the
powers of the immigration officer, and secondly, the limits and
constraints on those powers; both are perfectly admirable intentions of
any such piece of legislation. As I said, I do not need to persuade the
Minister. These would have been his words in other circumstances, so I
hope that he can persuade himself that it is a good
amendment. Tom
Brake: I am anticipating with joy and glee how the
Minister will extricate himself from the amendment and explain it away,
given that his Government proposed it. I believe that it sets out a
useful blow-by-blow account of the steps that must be taken of a
designated immigration officer who detains an individual. It is useful
that such action is documented. The proposal seems sensible and it has
a good pedigree, so I await the hon. Gentleman’s reply with
interest.
Mr.
Woolas: Despite the encouragement of my hon. Friend the
Whip, I was hoping that the hon. Gentleman would speak for a few
seconds longer, so that a specific answer could
appear. The
hon. Gentleman is right. It is also pertinent that the 2007 Act already
does what is proposed. Let me explain again what we are trying to do.
It is to be taken in conjunction with clause 22, which we have just
discussed. Clause 23 provides that the Secretary of State may, by
order, apply any provision of PACE 1984 and PACE (Northern Ireland),
which relates to the investigation of offences or the detention of
persons by police officers to criminal investigations conducted or
persons detained as part of an investigation by designated customs
officials or immigration
officers. Clause
22, which we have just discussed, applies provision in the Revenue and
Customs PACE Orders to criminal investigations conducted by designated
customs officials relating to a general customs or customs revenue
matter—the first being subject to the Secretary of
State’s designation, the second being subject to the director of
border revenue’s designation. That point answers the hon. Member
for Ashford. The clause will also apply provision in the Revenue and
Customs PACE Orders to persons detained by those officials in such
criminal investigations.
That will
enable the immediate application of the majority of the provisions of
the Revenue and Customs PACE Orders to designated customs officials,
including those officers of HM Revenue and Customs who have transferred
to the UK Border Agency and who are, under the proceeds that we
discussed earlier, so designated. That in turn will allow UKBA’s
designated customs officials to exercise the same powers in relation to
customs matters at the border as those currently available to officers
of HMRC. Equally importantly, that will ensure that when in future the
agency’s designated customs officials exercise those powers,
they will be subject to the same safeguards as now and in the future,
when they are exercised by officers of
HMRC. In
due course, however, an order under clause 23 will be made to apply the
provisions of PACE or PACE Northern Ireland, as the case may be, and
the associated codes of practice—that is an important point to
meet the worries of the hon. Member for Ashford—more directly to
designated customs officials, rather than relying on the
“glossing” of the HMRC PACE Orders,
for which clause 22 provides. Accordingly, clause
23(5) will enable an order made under the clause to amend or repeal
clause 22. In addition,
in any order made under clause 23, we propose to address the position
of immigration officers. Immigration officers do not at present use
powers in PACE when conducting investigations, but they are required,
when exercising powers in the context of a criminal investigation, to
have regard to the relevant provision in a PACE code of practice. We
have put that restriction on immigration officials. We will therefore
use the order that we propose to make under clause 23 to specify those
provisions of PACE—or, as the case may be, PACE (Northern
Ireland)—and the associated codes of practice that will apply to
any criminal investigation conducted by immigration officers, and to
persons detained by those officers in connection with any such
investigation. This order will replace section 145 of the Immigration
and Asylum Act 1999 and replace the Immigration (PACE Codes of
Practice) Direction 2000 and the Immigration (PACE Codes of Practice
No. 2 and Amendment) Direction 2000 made under that section.
Clause 23
will confer all the powers and impose all the safeguards necessary to
ensure the proper conduct by the UK Border Agency of its criminal
investigations—whether in relation to customs or immigration
offences. It will also provide a proper framework for the detention of
persons where necessary in connection with those investigations. That
is what we are attempting to do regarding clause
23. The
hon. Member for Ashford has put forward his amendments in good faith
and with good spirit—I readily concede that. The answer is that
that clause, of course, was not the only one that was published in the
draft Immigration and Citizenship Bill in July. It is an existing
clause, which is a section of the UK Borders Act 2007 in relation to
immigration orders, which is now covered by the point I have just made
in relation to clause 23. In other words, I agree what the hon.
Gentleman is trying to achieve, but my mechanism of getting there is
already
covered.
Damian
Green: I am impressed by the ingenuity of the
Minister’s response. He almost tempts me to quarry the draft
Bill for further things. The temptation is almost irresistible, but I
promise the Committee that I shall resist. I accept his explanation and
I hope that he is right. The underlying and extremely important issue
is that people should have clear rules and know what they are, and that
those rules should be completely clear about what immigration officers
can do in terms of detention and enforcement. Everyone associated ought
to know that. I accept the Minister’s assurance that he is
achieving that by other means, so I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
23 ordered to stand part of the
Bill. Clause
24 ordered to stand part of the
Bill.
Clause
25Short-term
holding
facilities Question
proposed, That the clause stand part of the
Bill.
Tom
Brake: I rise to confirm whether several issues to do with
the clause on short-term facilities have been addressed. When the
matter was discussed in the other
place, there were concerns that the facilities could be used to hold
people for in excess of seven days. I believe that the flow chart
provided by Lord West of Spithead confirms that holding people in one
of the short-term holding facilities for more than seven days is not
possible. I hope that the Minister will confirm that to be the
case. Another
concern was that the facilities were not designed to hold a mix of
people—various people, and under varying powers. How will the
Minister respond to that concern? Has it been addressed? There was also
concern that it was not clear what rules or guidance would apply in
respect of the treatment and welfare of people held in such places,
particularly if they were being held for differing reasons. I hope that
the Minister can give some clarification on those concerns, which
spilled over from the debate in the House of
Lords.
Damian
Green: I want to pick up one point made by the hon. Member
for Carshalton and Wallington about the use of holding facilities. Can
the Minister clarify at how many different ports and airports such
facilities as could reasonably hold someone for up to seven days are
available? I ask because I recently visited Dover, where there is a
brand new suite of interviewing facilities. I am sure that the Minister
has visited it as well—he probably opened it. That suite is
state of the art, but even Dover—unless elsewhere in the
port—did not appear to have the facilities to hold people for a
long period. From my visits, I am conscious that one possibly could at
Heathrow. That
would be useful to know, in particular in an era when we can expect
that increasing numbers of those seeking to enter the country
illegally, possibly serious criminals or even terrorists, will seek out
routes into this country that are not the obvious ones—not the
big ports and airports. Possibly, we shall need to have decent holding
facilities—both secure and decent for people to be held
in—at more places than just the big, obvious airports or
ports. It
would be helpful to the Committee to know what state we are in at the
moment. Is it just Heathrow—possibly not even Dover—where
that can be done? Or are such facilities more
widespread? 5.30
pm
Mr.
Woolas: The answer is that they are more
widespread—there are approximately 30 short-term holding
facilities in various ports and airports. They are used for the
functions that the hon. Member for Ashford rightly
described. I
can give the assurance that the hon. Member for Carshalton and
Wallington sought. To explain briefly, clause 25 is linked to the
provision that we have just discussed in some detail in clauses 22 and
23, to ensure the effective application of PACE and the codes of
practice to the UK Border Agency. Clause 25 provides us with some
flexibility in the future to use short-term holding facilities to
detain arrested persons, in addition to those currently detained in
such facilities under the administrative provisions of the immigration
Acts. The rules covering those people detained under the immigration
Acts will remain the same.
A short-term
holding facility is defined in section 147 of the Immigration and
Asylum Act 1999 as
“a place used
solely for the detention of detained persons for a period of not more
than seven days or for such other period as may be
prescribed”.
Section 147 of the 1999
Act also defines detained persons
as “persons
detained or required to be detained under the 1971 [Immigration] Act or
section 62 of the Nationality, Immigration and Asylum Act
2002”. Further
provision in respect of who may be detained in a short-term holding
facility was made in section 2(6) of the UK Borders Act 2007. The power
in that section allows a designated immigration officer to detain at
port for up to three hours any person who the officer thinks is subject
to a warrant for arrest, or is otherwise liable to arrest by a
policeman, pending the arrival of a constable—the point that was
made before. That provision under the 2007 Act means that individuals
detained for up to three hours under the section 2 power may be held
for that period only in a short-term holding facility.
A short-term
holding facility may therefore be used only to hold persons who have
been detained under those administrative powers of immigration
detention available to the UK Border Agency that I have mentioned. As
part of our desire to maximise the use of the agency’s detention
and custody facilities, we wish to make more flexible use of the
short-term holding facilities. To facilitate that, we propose in clause
25 that the definition be modified to allow such facilities to be used
to hold individuals who have been detained other than under the
existing administrative powers of immigration detention. Clause 25
achieves that by removing the word “solely” from the
definition. A consequential provision is also made to the schedule of
the Bill.
I stress that
the modifications do not impact in any way on the treatment of persons
held under the UK Border Agency’s administrative powers of
immigration detention. The modification we are seeking does not relate
to immigration. The treatment of such persons will continue to be
governed by the existing arrangements and the maximum periods that have
been referred to.
The changes
to the definition will simply allow the UK Border Agency and HM Revenue
and Customs to use short-term holding facilities to detain persons
following arrest, where that is in accordance with the provision we are
making in relation to the application of PACE and the codes of
practice. In other words, the short-term holding facilities could in
future hold a range of individuals, subject to the prescribed period of
detention relevant in each case, including individuals arrested on
suspicion of committing an immigration or customs offence for up to six
hours or—where a short-term holding facility has been designated
for the purposes of PACE as a place for detention longer than six
hours—in accordance with the time limits prescribed by the
so-called PACE clock. The provision could also cover individuals who
are the subject of warrants for arrest, or who are otherwise liable to
arrest by a police officer, who have been detained under section 2 of
the UK Borders Act 2007 for a maximum of three hours, pending the
arrival of a constable; and individuals who are subject to
administrative immigration detention for no longer than five days, plus
a further two days where it is proposed under removal directions set to
remove the person concerned from the UK within that further
period.
That is what
we are trying to achieve. As I hope I have outlined, I can give the
guarantees that the Committee is looking
for. Question
put and agreed to.
Clause
25 accordingly ordered to stand part of the Bill.
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