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Grand Committee

Monday, 23 July 2007.

The Committee met at half-past three.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]

UK Borders Bill

(Fifth Day)

The Deputy Chairman of Committees (Lord Brougham and Vaux): Good afternoon and welcome to the fifth day of the UK Borders Bill. There may be a Division. If there is, the speaker will desist and we will adjourn for 10 minutes.

On Question, Whether Clause 21 shall stand part of the Bill?

Lord Avebury: I wonder what we shall do on wet Monday afternoons for the rest of the summer when we no longer have the UK Borders Bill to keep us happy and occupied.

I remind the Committee that on the first day in Grand Committee we discussed assault, why it was necessary to have a separate offence of assaulting an immigration officer and whether this clause would come into force at the same time as Section 281 of the Criminal Justice Act 2003. The Minister said in response to that amendment that the penalty of 51 weeks would indeed apply from the date that Section 281 comes into force, as Clause 21(5) provides, but he said that the offence itself would continue to apply until then. Clause 21 comes into force only in accordance with an order made by the Secretary of State, not when the Act itself comes into force, so for the time being assaults on immigration officers will continue to be dealt with under the existing law.

In his letter of 5 July, the noble Lord, Lord Bassam, said that no separate statistics were held on these offences, but that in 2004-05 there were 28 assaults on BIA staff altogether. It was a little surprising that the Minister was unable to give a breakdown, because for all we know those assaults could have been against other staff working in the IRCs, Communications House and the AIT, for example, and if that appeared to be a problem there could have been an argument for widening the offence to assault on any employee of the BIA rather than immigration officers only. Perhaps when he replies the Minister will say why it was thought fit to confine this offence to assaults on immigration officers and not extend it to the rest of the BIA staff.

The agency has around 17,200 staff in the UK, including agency, casual staff and consultants, and the Home Office has no idea whether immigration officers are particularly vulnerable compared with all those other people. If the Minister cannot say anything at all about the circumstances of the assaults that have taken place on immigration officers, then equally the Government have no justification for

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creating the new offence in this clause. It could be that in a subset of the 28 cases where the CPS decided to prosecute, common assault was the charge normally used, and that no problems had arisen with that. However, we shall never know because the noble Lord does not have that sort of information.

If there were more serious cases, where actual bodily harm was inflicted on the officer concerned, this clause would not have come into play in any case because the offender would be charged under Section 47 of the Offences Against the Person Act 1861. It would be useful to know how many of the 28 cases that the Minister mentioned in his letter led to this or some more serious charge. Perhaps he can tell us. In the cases in which the charge was common assault contrary to Section 39 of the Criminal Justice Act 1988, we need to know what difficulties arose because the officer or one of her colleagues could not arrest the offender, not having the power of arrest in Clause 22. In cases of assault where no police officer was in the vicinity and the attacker absconded before the police were summoned, surely that problem would be solved by the power of detention in Clause 2. We still do not see the justification for creating this new offence, and I am afraid that nothing that the Minister said in Committee or in his letter has dispelled our concern.

Lord Hylton: I fail to see why such assaults on immigration officers could not be dealt with under normal criminal law. Surely any court would take into account the fact that the assault was on an immigration officer and would treat that as an aggravating factor.

Lord Bassam of Brighton: At present, there is no specific offence of assaulting an immigration officer. Assaults on immigration officers from members of the public are charged under the offences applicable to a physical attack, and the power of arrest would lie with a police constable in the usual way. This is in contrast to the other public servants who exercise similar—and, one must recognise, coercive—powers, such as officers from Her Majesty’s Revenue and Customs and the police. The key motivation for taking this power is to provide immigration officers with the tools necessary to enable them to take the initiative and to deal with incidents of assault as they arise. This is wholly consistent with our commitment to enhancing the powers of our border services to strengthen inter-agency working.

The Government believe that it is important to give appropriate protection to agents of the state who exercise coercive powers in their front-line role to protect the public. The exercise of powers of arrest and the use of force mark out immigration, Revenue and Customs and police officers from other government employees. A key aim of the border management programme is to enhance joint working between the border agencies to create the more effective, efficient and flexible border staff that the public expect. In this, it is important that we mirror for immigration officers the protection already afforded to the officers of Her Majesty’s Revenue and Customs and police colleagues. As with other offences in immigration legislation, where a power of

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arrest is appropriate, we intend that a suitably trained immigration officer may exercise a power of arrest in respect of this offence. Clause 22 creates this power of arrest. This power should exist for the same reasons why we already provide immigration officers with powers of arrest in other areas. To rely on a police officer in such circumstances undermines the benefits of ensuring that each agency can prioritise resources that will otherwise be delivered by introducing the primary intervention capability. Moreover, enabling immigration officers to arrest individuals who commit or attempt to commit an offence of assault against a colleague will ensure that we have the means to deal immediately with those who threaten the safety of front-line immigration officers.

This is a sensible power and provision, and I do not quite understand the problem that the noble Lord, Lord Avebury, has with it. Thankfully, there are not too many assaults on our immigration staff. However, those who assault them should be treated appropriately, and giving immigration staff these powers will enable them to deal with assaults much more easily. This is a sensible measure, as I said, and I hope that the noble Lord will feel able to withdraw his objection to the clause.

Lord Avebury: Obviously I have no option but to withdraw my objection to the clause, because that is how the procedure works in Grand Committee. I cannot say that I am satisfied with the Minister’s reply. No one is arguing about whether there should be charges made against someone who assaults a front-line officer, whether that be an immigration officer, a customs officer or a member of the police force. Nor are we arguing about the penalties, because the existing penalty for each of those offences is six months, and when Section 281 comes into force, that will be changed to 51 weeks, as we have discussed.

There is no question but that where people commit criminal offences against front-line workers, they should be charged, they should be brought before the courts and they should be given the same penalty, whichever service the assaulted person belongs to. We are arguing about whether there needs to be a separate charge relating to immigration officers in the Bill or whether the existing procedures work perfectly satisfactorily, and particularly whether they will work satisfactorily once the immigration officers have the power to detain, which they will have under the Bill. The noble Lord cannot even tell me whether there is any problem with people absconding at the moment in cases where someone commits an assault on an immigration officer and, because he does not at present have the power to detain, by the time a police officer is called to attend the scene the offender has already vanished into the crowds.

We have no breakdown whatever of the 28 cases that the noble Lord gave in his letter, whether they are assaults against a person in the front line, as he puts it, or against personnel working in immigration removal centres or some other part of the BIA. The noble Lord did not even bother to address the question that I put to him of why there should be a particular offence relating to immigration officers and

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not to the rest of the BIA’s 17,200 staff, some of whom may be equally vulnerable. I am wholly dissatisfied with the Minister’s reply but, as I said, I have no option but to accept the position. I will not pursue my objection at this stage.

Clause 21 agreed to.

Clause 22 agreed to.

Clause 23 [Seizure of cash]:

[Amendment No. 49 not moved.]

Clause 23 agreed to.

Clauses 24 and 25 agreed to.

Clause 26 [Employment: arrest]:

[Amendment No. 50 not moved.]

Clause 26 agreed to.

Clauses 27 to 29 agreed to.

Clause 30 [People trafficking]:

Lord Judd moved Amendment No. 51:

The noble Lord said: I have already said on a previous amendment that there are things in the Bill that the Joint Committee on Human Rights positively welcomed. We certainly welcomed the Bill’s extension of the scope of the existing trafficking offences, which implements one of the proposals in the Government’s UK action plan on tackling human trafficking. However, we were disappointed that the opportunity had not been taken to introduce more effective protection for the victims of trafficking.

In our recent report on trafficking, we concluded that the current level of protection provided to victims is far from adequate from a human rights perspective. The committee expressed its appreciation to the Government for their positive response to the committee’s recommendation to sign the Council of Europe convention on action against trafficking and to publish the UK plan on trafficking. However, we remain deeply concerned at the delay in ratification and had a rather intense discussion on this matter with Mr Vernon Coaker only last week.

3.45 pm

We thought it important that our recommendations should be considered as a whole and not cherry-picked. We made a number of recommendations about improving the legislative framework for protection and I should like to indicate some of them. In particular we recommended that the Bill should be amended to improve protection by providing that, where there are reasonable grounds to believe that a person is a victim of trafficking, that person shall not be removed from the United

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Kingdom until the process for identifying whether he or she is such a victim is complete. That seems only reasonable. Why undertake the process if there are doubts? Obviously doubts should be resolved before action is taken.

A recovery and reflection period of three months should be granted to a person who has been identified as a victim during which time no immigration enforcement measures should be taken against them. It is difficult to imagine the trauma that victims of trafficking may have been through. In taking evidence and considering these matters we were repeatedly struck that too often the assumption was to treat them as part of the immigration problem and only subsequently as victims. After the psychological damage that may have been done to them, it is important that they should have a period in which they can come to a sensible and rational decision about what they want to do. Another proposal was that renewable residence permits of up to six months’ duration should be granted to victims of trafficking.

As the Committee knows, I am a very committed member of that Joint Committee. I do not much see the point of us acquiring the role of a Greek chorus, wringing our hands and wishing things were otherwise and describing the horrible things that are happening off stage. If we feel these things, those of us who find ourselves with an opportunity like this should pursue them, which is why I beg to move.

Lord Avebury: I pay tribute again to the noble Lord, Lord Judd, on his remarkably assiduous work on the Joint Committee on Human Rights and the way in which he has pursued many of the issues on which it has made recommendations in Grand Committee. It is very useful that we have had that voice raised periodically throughout these proceedings. We also had a useful debate on trafficking initiated by the noble Lord, Lord Sheikh, on 27 June in which, as the noble Lord, Lord Judd, has pointed out, the House gave a general welcome to the Government’s signature of the Council of Europe convention, to their production of the UK action plan on human trafficking and to the establishment of the UK Human Trafficking Centre and the Child Exploitation and Online Protection Centre, all of which are very useful measures that should help us to make a real impact on this wicked phenomenon of trafficking.

As often happens, in that debate far more points were raised than the Minister was able to cover in his response. I think that I am right in saying that we still look forward to his promised letter following up all those points, although we understand that, as he has to cope single-handedly with all the Home Office work, including this Bill, it is not easy for him to keep up with that correspondence.

Article 13 of the Council of Europe convention stipulates a minimum of 30 days for recovery and reflection, but the JCHR heard evidence—as the noble Lord, Lord Judd, has just told us—suggesting that three months would be more appropriate. The impact on victims can be devastating, resulting in a variety of physical, psychological and emotional problems, as the UK action plan emphasises. The experience of women referred to the Poppy Project, whose needs

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were culturally diverse as well as varying widely according to their particular experience, seems to indicate that a more flexible approach is required, covering not only the immediate assistance to be provided but also the range of support and resettlement services needed by the women given leave to remain. The action plan calls for, among other things, the establishment of a multi-agency group to review victim-centred trafficking measures. We would like to see the more radical and comprehensive programme that will emerge from the trafficking centre and the NGO advisory group’s recommendations, which will address three areas: better identification and referral procedures, enhanced support and rights for adult victims and their reintegration and resettlement.

With regard to children, in previous debates we asked a number of questions and had answers to many of them in the Minister’s letter of 19 July. It is apparent that, as a result of the global visa regulations introduced in February 2006, the number of UASC entering the country is falling and because every child subject to an entry clearance must be accompanied by what is called a “vignette”, on which is recorded the personal details of the child and of the person with whom the child is supposed to be travelling—or, in the case of an unaccompanied child, of the UK sponsor—the opportunities for trafficking have, we hope, already been reduced. However, where there is a discrepancy between the information on the vignette and the actual details of the child or sponsor, the possibility of trafficking should be flagged up. I asked whether a central record was kept of the discrepancies and the action taken to follow them up. Having been unable to find any reference to it on the web, I also asked about the best practice code on the carriage of minors which the action plan said was to be published in May. I asked whether, in the event of any suspicion arising, the child and the adult sponsor would be interviewed separately. The Minister’s letter of 19 July was very long—in fact I think it was something of a record at nine pages. We are grateful to him for all the information that he has provided, but I wonder whether he could check it again and ensure that those questions were answered. On a quick skim, I think that they may not have been covered.

The arrangements for the protection of child victims of trafficking are, of course, different from those for adults. They would be in no danger of removal as illegal entrants because all children, trafficked or not, are given “discretionary leave” under APU Notice 3/2007, to the age of 17 and a half since March, so they would have no need of the first leg of this amendment. Once identified as trafficked, a child must be provided with care and protection under the Children Act 1989 and equivalent legislation in Scotland. The action plan promises that national best practice guidance will be issued to professionals on how to provide support for trafficked children, supplementing the DfES publication Working Together to Safeguard Children, published in April 2006. I would be grateful if the Minister could tell the Committee when this guidance is to be published.

I have every sympathy with the thinking behind this amendment, but I wonder if the noble Lord,

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Lord Judd, and others may think that we should await the revised version of the action plan, following the Government’s consideration of the 200-odd responses to the consultation on the plan, to see how far it meets the needs of victims of trafficking—not just for recovery and reflection, but for their care, rehabilitation and resettlement. It would be useful if the amended action plan could be published before Report so that the House could then consider, in the light of all that work, whether any legislative changes need to be inserted into the Bill.

Lord Roberts of Llandudno: I strongly support the amendment. I also reinforce the suggestion made by my noble friend Lord Avebury that the Government could implement the report on the action plan—the valuation—when we discuss this early in October on Report. I feel fairly optimistic for once that the Government have a heart and that that heart will include some reference to trafficking. Will it be in Amendment No. 51, which I prefer because it is far fuller and gives greater guidance, or even in Amendment No. 65? Not to implement it would be in total contravention of our signing of the Council of Europe Convention on Action against Trafficking in Human Beings. We cannot do something in that direction one day and refuse to implement it the next. Without saying anything further, I hope that my optimistic heart will be reflected in the Minister’s answer and in the final Bill which is before us in October.

Lord Hylton: Since the Official Opposition are so bashful, I shall go next.

Baroness Anelay of St Johns: As I have explained before, it is for the convenience of the House that the opposition spokesman should speak last in all proceedings, including those in Grand Committee. Although I appreciate that that is less helpful in Grand Committee than on the Floor of the House, the reason is simply that it gives an indication to noble Lords who are not taking part in the debate that when they see that name up, the Minister will be coming next. I am merely trying to follow the procedures of the House.

Lord Hylton: I am intrigued to know what line the Conservative Party is taking on this important amendment which has come from the Joint Committee on Human Rights. I shall look at it item by item. I suggest that subsection (5) is of crucial importance, come what may. I have reasons for saying that, the principal one being that the process of dealing with a probably trafficked person will be vitiated. The person will be sent perhaps to their country of origin, or perhaps somewhere else, and will be wide open to being retrafficked. They will be put into an extremely vulnerable situation. I hope that the Government will take that point very seriously.

Subsection (6) brings us to the much-debated pause of time for reflection and recovery. Various Ministers over the years have said that if we legislated for such a pause, it would be a major incentive to traffickers to bring in more people. That is simply an assertion; no evidence has ever been given to support

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that argument. Even if the Government will not accept provision for such a pause in the Bill, will they undertake to do it in practice informally, without statutory backing? Will they please consider the best practice in Europe, where several countries already allow such a pause? Will they bring our performance up to the level of the best European Union practice?


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