DRAFT POLICE AND CRIMINAL EVIDENCE ACT 1984 (APPLICATION TO IMMIGRATION OFFICERS AND DESIGNATED CUSTOMS OFFICIALS IN ENGLAND AND WALES) ORDER 2013
The Committee consisted of the following Members:
† Alexander, Heidi (Lewisham East) (Lab)
† Blunkett, Mr David (Sheffield, Brightside and Hillsborough) (Lab)
† Bottomley, Sir Peter (Worthing West) (Con)
† Bridgen, Andrew (North West Leicestershire) (Con)
† Bruce, Fiona (Congleton) (Con)
† Bryant, Chris (Rhondda) (Lab)
Burden, Richard (Birmingham, Northfield) (Lab)
† Crockart, Mike (Edinburgh West) (LD)
Farrelly, Paul (Newcastle-under-Lyme) (Lab)
† Harper, Mr Mark (Minister for Immigration)
† Lee, Dr Phillip (Bracknell) (Con)
† Opperman, Guy (Hexham) (Con)
Robinson, Mr Geoffrey (Coventry North West) (Lab)
† Rogerson, Dan (North Cornwall) (LD)
† Rotheram, Steve (Liverpool, Walton) (Lab)
Shannon, Jim (Strangford) (DUP)
† Stewart, Iain (Milton Keynes South) (Con)
† Syms, Mr Robert (Poole) (Con)
Elizabeth Bolton, Committee Clerk
† attended the Committee
Sixth Delegated Legislation Committee
Wednesday 12 June 2013
[Dr William McCrea in the Chair]
Draft Police and Criminal Evidence Act 1984 (Application to Immigration Officers and Designated Customs Officials in England and Wales) Order 2013
8.55 am
The Minister for Immigration (Mr Mark Harper): I beg to move,
That the Committee has considered the draft Police and Criminal Evidence Act 1984 (Application to Immigration Officers and Designated Customs Officials in England and Wales) Order 2013.
It is a pleasure to serve under your chairmanship, Dr McCrea.
The order was laid before Parliament in April. It will apply certain provisions of the Police and Criminal Evidence Act 1984 to criminal investigations conducted by immigration officers. It will, for the first time, directly apply PACE provisions to immigration officers, reflecting the increasing incidence of immigration officers taking on criminal investigations. It does not affect existing administrative powers of detention, which will continue to be used, for the vast majority of immigration operations, under the Immigration Act 1971.
The order will also apply PACE to designated customs officials and to persons detained by designated customs officials, including powers of arrest, search of premises, seizure of evidence, as well as obligations in respect of persons detained on suspicion of having committed customs offences. It will also repeal part of section 22 of the Borders, Citizenship and Immigration Act 2009, which provided for the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 to apply to designated customs officials undertaking criminal investigations in England and Wales. That was the legislative vehicle that afforded PACE powers to customs officials who transferred from Her Majesty’s Revenue and Customs to the Home Office in 2009.
At the time, the commitment made to Parliament was that the measure would be temporary, pending the coming into force of one order that applied to both immigration officers and customs officials within the Home Office. After a relatively lengthy period of pendingness, the order today will fulfil that undertaking.
The reason that, to date, the powers have applied only to customs officials undertaking criminal investigations and detention derives from the time when customs work was an integral part of HMRC. The increasing incidence of immigration officers taking on criminal investigations as part of a focus on tackling immigration crime has made it necessary to extend some of the criminal investigation powers that currently apply to police and designated customs officials to immigration officers.
Designated customs officials in the Border Force will continue to have access to PACE powers as a result of the order, but will now do so under the same legislative vehicle as their immigration officer counterparts. That
will reduce possible confusion in circumstances where officers are dual-qualified as both an immigration officer and a designated customs official, and also should negate any need to seek further enabling or provisional powers in the event of future structural changes.The application of PACE powers to customs officials in the former UK Border Agency and subsequently Border Force via section 22 of the Borders, Citizenship and Immigration Act was only ever intended to be temporary. There is a clear operational need for immigration officers to have access to the same criminal investigation powers as their law enforcement counterparts.
I commend the order to the Committee.
8.58 am
Chris Bryant (Rhondda) (Lab): It is a great delight to sit under your chairmanship, Dr McCrea, not least because I am going to make a few references to Northern Ireland—just to warn the Minister—since the Minister in the House of Lords was not prepared for questions on Northern Ireland. The Minister may already have some inspiration even before I ask the questions.
I welcome the measure, not least because we made the commitment in government in 2009. Although we have revised some of our views on some issues since being in government, on this issue, we have not revised our view; we maintain the same policies we held then.
Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab): I would like my hon. Friend to give way, not least because as an ex-Education Secretary, I am determined to get my mark this morning before we finish.
I hope that we do not change our mind on too many other things in respect of such matters.
Chris Bryant: There is no accounting for the changing of one’s mind. Sometimes the world moves on. Sometimes, just because there is a new Minister, they have to have a new view.
I support the order not least because it is inconvenient and may harm an investigation if two members of the same investigative team are not operating under the same rules of engagement. It seems to make sense; indeed, I would say, to use a valleys word, it is tidy to have everybody operating under the same function—although I should say that when I first used that phrase, in the second speech I made in the House of Commons, on the Ofcom paving bill, Hansard rendered it as to use a “valet’s” word. There are not very many valets in the valleys—not that I am aware of, anyway.
The Minister referred to the increasing incidence of criminal investigations as being the reason we need to proceed in this way. It would be useful for the Committee to know to what degree the incidence is increasing. There will be new teams working jointly between the National Crime Agency, once that is fully operational, and agencies engaged in customs or immigration investigations. What is his understanding of how those teams will proceed? Does he believe that a further order will be required when the NCA is fully operational?
Will the Minister set out exactly how the measures will apply in Northern Ireland? I know that matter was discussed in the House of Lords; the Minister there clearly did not know then, so I wonder whether Ministers know now.
Article 6 says—a phrase repeated several times in the order—
“the immigration officer may use reasonable force, if necessary, in the exercise of the power.”
That is fairly standard in a lot of legislation: a person has to prove first that using the force was necessary and secondly that the force that was used was reasonable. However, the Government—and Conservative Members in particular—have been very exercised in the past about a lack of clarity in the law as to what “reasonable force” means when somebody is dealing with a burglar. Does the Minister therefore believe that there is any need for further clarification of that phrase, which occurs about eight times in the order?
There seems to me to be a conflict between article 9 and article 8. Article 9 deals with the seizure and retention of things found upon search. It says:
“The power of an immigration officer to seize and retain evidence found upon a lawful search of a person or premise…shall have effect notwithstanding that the offence to which the evidence relates does not relate to an immigration or nationality matter.”
In article 8, it is made quite explicit that the immigration officer is able to search only in so far as he can find due reason to do so by virtue of the immigration or nationality matter. The two articles therefore seem to be conflicting.
Sir Peter Bottomley (Worthing West) (Con): On article 8, surely the officer needs reasonable grounds to make a search in the first place.
Chris Bryant: Yes, obviously, because officers have to have a warrant, but the order is very specific as to what the warrant can be used for, which is why there seems on the face of it to be a conflict. Perhaps the Minister will be able to enlighten us as to why there is not.
Mike Crockart (Edinburgh West) (LD): To use my experience—I was in the police service in Edinburgh for eight years—if an officer needs the power to search, he gets the warrant. However, if while searching he finds something that does not relate to what he was searching for but is evidence of illegality, it would be perverse if he were then to say, “I can’t touch that because it is not what I was looking for,” and to move on.
Chris Bryant: Absolutely. That is my point, and why I questioned article 9, which seems to conflict with that common-sense attitude—[ Interruption. ] I will be quite happy to confess that I am wrong, if I am wrong; I may well be wrong, but doubtless the Minister will have access to the font of all knowledge and so be able to enlighten us.
Article 22 contains a phrase that has become common in statutory instruments of late:
“Section 35 of the Act…as applied by article 12, has effect as if for that section there were substituted”.
That seems a rather strange way of doing things. None the less, it says:
“The Secretary of State shall designate the customs offices which…are to be the offices to be used for the purposes of detaining arrested persons.”
I wonder whether that includes everywhere. How specific is it within Heathrow, for instance, or a port? It would be interesting to have a list, as I presume one is already available.
Without further ado, we welcome the measure, as it was our policy in the first place. We are always grateful when the Government implement our policy.
9.5 am
Sir Peter Bottomley: May I make two unrelated points? One concerns etymology or possibly philology. The explanatory memorandum uses the word “glossing”. May I have a note, not necessarily this morning, identifying which sense of the word is being used? Is it used in the sense of putting a shine on something, or a suggestion of something rather clever that would not stand up to the light of day? I hope it is the first.
The second is an unrelated point. Will the Minister write to tell me whether these powers might be used if a Member of Parliament gets a complaint from a constituent that, through an overseas internet scam, money is being processed through London bank accounts? If that is the case, who are the relevant officials to whom that should be reported and who are likely to follow it up?
9.6 am
Mike Crockart: I do not intend to detain the Committee. I have one question for the Minister. I entirely agree that this is a good way to tidy up the measures and to provide investigative teams with the power to work more effectively together. We should not forget that significant powers are being conferred on individuals by this measure. The powers to arrest, to detain and to make an intimate search are significant. One thing that is unclear is the level of training to be given to the people exercising those powers. The explanatory memorandum says,
“The Home Office will provide instructions and guidance to its officers.”
“A limited amount of resource will be required to up skill and brief affected staff but this will be handled within ‘business as usual’.”
That does not seem a significant resource to put into the decent amount of training required to exercise the powers. I experienced two years’ training before I was allowed on my own to exercise such significant powers. I would be very worried if people were allowed to exercise those powers on their own without significant amounts of training. I would welcome confirmation from the Minister.
9.8 am
Mr Harper: Let me first run through the Opposition spokesman’s points. He talked about the incidence of criminal investigations, with specific reference to the National Crime Agency. Clearly, there are lots of operations at the moment where the police work closely with immigration officers. I saw that in relation to an illegal working operation when I was in Cardiff the other week. At the moment, because they use different powers, they end up having separate briefings and the whole thing does not work in a seamless way. There is a lot of that work going on.
Clearly, there will be officers within the NCA designated as constables but also as immigration officers and customs officials. There will be lots of joint working between the NCA, Border Force and parts of the Home Office. It is difficult to quantify in a numerical way, but there is a significant amount of work. I think the public would want to be sure that the different arms of the state are able to work together in a sensible but not over-bureaucratic way. Having a single order that provides some of those powers—I will come on to safeguards in a moment—is very sensible.
Chris Bryant: I agree with that. We were a few weeks ago at the docks in Hull with Border Force officers, who had their own IT system. There was also a special branch officer standing there, doing absolutely nothing, as far as I could see, for a great deal of time, with an IT system that did not work, as he told us. Never the twain spake unto one another, and I just wonder whether there is not more opportunity for rationalisation.
Mr Harper: The point that the hon. Gentleman makes is absolutely fine. Certainly on IT systems, a lot of work is going on to ensure that either we have systems that are interoperable now or we design systems that will work more sensibly together. From Governments of both parties, there is a legacy of IT systems that do not always work together seamlessly, and that creates bureaucracy and overheads. We are trying to make improvements.
The hon. Gentleman asked perfectly sensible questions about Northern Ireland, specifically about when the order will apply there. The short answer is that it will not, ever, but to deal with the Northern Ireland situation we will introduce an order in due course that will apply there, so that immigration and customs officers operating in Northern Ireland will have the appropriate powers applied to them, with the appropriate safeguards.
The hon. Gentleman asked about article 6 and whether “reasonable force” needs to be clarified. The term, in the context in which it is used here of law officers exercising reasonable force, is perfectly well defined through case law. He argued that articles 8 and 9 were perhaps in some sort of conflict, and the hon. Member for Edinburgh West, based on his experience, set out a clear position on that. While the two hon. Members were speaking, I re-read the two articles, and I do not think that there is a conflict. I think that the situation is exactly as the hon. Member for Edinburgh West clearly set out: although there must be reasonable grounds for getting a warrant in the first place, if someone encounters material that indicates illegality, there is nothing that prevents them from retaining the material, even if it is not for the purpose for which the search was originally conducted.
On the question asked by the hon. Member for Rhondda on article 22, which is about designated police stations and customs custody suites, there is a list of all the suites. I do not have it to hand, but I will write to the Chairman of the Committee and copy the information to members of the Committee, ensuring also that a copy goes to the Library of the House. I hope that that is helpful.
The hon. Member for Edinburgh West asked two specific questions. One was about the significant powers involved. There is a flipside to that, which I did not refer to in my opening remarks, which is that the fact that the powers are under PACE means that the codes of practice and the safeguards are also there. So although officers are getting the appropriate powers, they are also bound by the same rules in exercising them as police officers.
On the second question about training, the powers will apply only to officers who are designated criminal investigators. That is not every immigration officer; it is only those who conduct criminal investigations. There
is a significant amount of training. All officers who are so designated are trained to College of Policing standards, and there is a two-year professionalising investigation programme, which is tested and assessed to national police standards. Immigration officers who are exercising criminal investigation powers will have to undergo those standards, and will operate, therefore, at the same level as their fellow police officers. I hope that on that basis the hon. Gentleman is content with the order.My hon. Friend the Member for Worthing West asked two questions, and I will deal with the second one first, which was, I think, about international money-laundering offences. If he has any evidence of illegality, the case should, in the first instance, be referred to the police. Just as the Serious Organised Crime Agency does now, the National Crime Agency will deal with situations in which there is international organised crime, including the transfer of funds. That is the sort of thing that the National Crime Agency will do more effectively. If there is an immigration or customs aspect, for example, NCA officers may work closely with immigration and customs officers using the powers.
Sir Peter Bottomley: I realise that a brief debate such as this is not the place to explore the matter in any depth, but for clarity and for those who may read our debate and those to whom his office may refer my question, I am asking about people overseas who take deposits on holidays, villas or other things and then steal the money and process it through a bank account in London. It is part economic crime, part money laundering and part all sorts of things, but it would be helpful to get some advice that I can give to constituents and others affected.
Mr Harper: I am grateful for my hon. Friend’s clarification. I will ask my officials to set out the details and I will write to him. If such cases are raised by his constituents—now that he has explained it, I realise that such matters are raised with Members of Parliament—I will give him some clear advice on how to deal with them.
My hon. Friend asked a specific question about the word “glossing”. It is nothing to do with opacity—although I sometimes think so when reading statutory instruments. It is to do with orders applying to customs officers when they were part of Her Majesty’s Revenue and Customs. Although they moved Departments and were then in the Home Office, the statutory instrument that gave them the powers effectively still applied. That is not a dictionary-quality definition of the word, but that is the way that it is used. It is not used in a decorating or opacity sense. When I read my briefing and cleared the explanatory memorandum, that was the first time that I came across the word being used in this particular sense.
I think I have dealt with all hon. Members’ questions, so I hope that the Committee is content that it has considered the order.