Joint Committee on Statutory Instruments Tenth Report


Memorandum by the Home Office

Immigration (Suspension of Detainee Custody Officer Certificate)
Regulations 2001 (S.I. 2001/241)

1. By a letter dated 27 February 2001, the Committee sought a memorandum on the following issue:

    "Explain what sort of "allegation" is intended to be covered by regulation 3(a) and why this is not spelt out in the regulation. The Department's attention is drawn to the Committee's Twenty-Ninth Report (Session 1997-98) on S.I. 1998/474."

2. The reason that the types of allegation intended to be covered by regulation 3(a) are not spelt out in the regulation is that it is intended that any allegation, however trivial, will be covered. This is because of the importance given to maintaining good order within a detention centre. However, the mere fact that an allegation is made does not automatically lead to the suspension of the officer's certificate of authorisation. The making of an allegation is a trigger for the exercise by the escort or contract monitor of a discretion whether or not to suspend the officer's certificate of authorisation or to refer the matter to the Secretary of State. The relevant monitor cannot do so unless it appears to him that the officer is not a fit and proper person to perform the relevant functions (paragraph 7(2) and (3) of Schedule 12 to the 1999 Act). This means that the relevant monitor will need to be satisfied that the allegation is well founded before he can take any action to suspend the certificate or refer the case to the Secretary of State.

3. For that reason it was felt appropriate that any allegation, however trivial, should trigger the relevant monitor's discretion so that the power to suspend was available in an appropriate case. As the reference to an allegation was intended to be interpreted so widely, it was thought that no qualification of the expression was necessary.

4. Although the interpretation of the reference to an allegation is intended to be very broad, it is to be noted that the effect of regulation 3(a) is that an allegation triggers the relevant monitor's discretion only when the allegation has been made against a detainee custody officer acting in pursuance of escort arrangements or performing custodial functions at a contracted-out detention centre.

5. The Department acknowledge that there is no material distinction for present purposes between the wording of the present Regulations and that of the Criminal Justice and Public Order Act 1994 (Suspension of Custody Officer Certificate) Regulations 1998 (S.I. 1998/474). But in the light of the above explanation of the intended breadth of the reference to an allegation, the Department consider that no qualification of the expression is needed in order to achieve the intended interpretation.

6 March 2001

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