---

The point I am making is a very serious one. If we are to create a new force of this nature, then clearly it will be complex, clearly it will require detailed legislation and, more appropriately, it will need a very full consideration. It should be based on a well thought through and constructed review—which, of course, my argument suggests is being conducted and which we should await. The Prime Minister has made a very clear commitment in this area and it would be wrong to pre-empt the Cabinet Secretary’s review.

I am, as ever, grateful to the noble Baroness and other noble Lords for raising the issue, but they will have to accept that there are some flaws in their approach; indeed, flaws of such gravity that the amendments risk running the accusation of being somewhat of an insult to the issue and of undermining the general direction in which we have been progressing for some time. The effect of the amendments would be to create an organisation without a head, an organisation without new powers, an organisation which is accountable to no one and an organisation which does not have a proper money order attached to it. Constructive consideration has to be given to those issues and, for those reasons, I would argue that the amendments are not fit for purpose—although, of course, I fully accept that they are brought forward in the spirit, which is shared across your Lordships’ House, of where we see potential for development.

The Duke of Montrose: My Lords, if this review is of such importance and will bring forward good ideas as to what should happen on the borders, why are we holding this discussion today? Should we not have held over our Report stage until we had this information?

Lord Bassam of Brighton: My Lords, the noble Duke asks a very good question. I assume we are having this discussion today because this is seen by the party opposite as being a political priority. Of course, it is quite right to prioritise these issues; we have been doing exactly that as a Government for some time. We should of course give further consideration to the report when it is produced; I am arguing precisely that. That is why I do not believe it is right for us to accept an amendment of such a wide-sweeping enabling nature as the one we have before us today. While we have made progress in that direction, we should await the outcome of the review.

Then we will have to consider what kind of legislation we need to bring forward—because it will certainly require complex legislation. As I have

9 Oct 2007 : Column 161

described, in setting up SOCA we had to introduce a Bill with 59 clauses and two schedules. If we do not have legislation that has been properly and appropriately considered by the House, then the force that noble Lords opposite are seeking will not have been given thorough consideration.

5.15 pm

Noble Lords raised a number of other issues, and I will try to deal with some of them. I do not have in front of me the precise words that I used in Grand Committee, but I do not believe that I suggested that immigration officers were devolved in the way in which they operate. That was certainly not my intention. Are immigration officers devolved? No. It is in the conferral of functions that police officers engage in a devolution issue, in the sense that they will act in Scotland to support the Immigration Service. As I have said, immigration is a reserved matter.

There was a question about enforcement and assault. The offence of assault will apply nationally, by virtue of Clause 22. The powers of arrest in the Bill will also apply nationally. The question of the British border management programme was also raised by implication. ACPO Scotland is fully engaging with the programme with regard to delivering the powers relating to non-immigration matters, and discussions continue on those sorts of issues.

The noble Lord, Lord Forsyth, and the noble Baroness, Lady Carnegy, raised other issues with regard to the Scottish Executive, and I understand entirely why they might want to do so. We as a Government have to work constructively with our colleagues in the Scottish Executive. To that end, the Executive have confirmed that they will further consider the matters raised by noble Lords today. We have had no commitment as yet from the Executive to legislate on this area; they are considering whether they need to. Border controls are not devolved, but crime is a devolved matter.

Lord Avebury: My Lords, the Minister will recall the discussion that we had in Grand Committee on an amendment tabled by the noble Duke, the Duke of Montrose, concerning the lack of powers in Clauses 1 to 4 for immigration officers north of the Border. The issue was not that the functions were devolved, but simply that immigration officers, particularly those operating in remote areas of Scotland such as Shetland, did not have these powers conferred on them and would therefore always have to wait for a police officer to arrive when it was necessary to arrest someone.

While that may not have mattered very much in the past, there was a particular case—which I think the noble Duke raised—of a person who arrived by cruise liner in Shetland, where there was one immigration officer to deal with several thousand individuals on the ship. This passenger slipped past the Immigration Service and committed a serious crime in Aberdeen, which was highlighted in the Scottish press at the time. So the question was: have the Government had further discussions with the Scottish Executive on whether these powers should be extended to Scotland

9 Oct 2007 : Column 162

or on whether they will be capable of dealing with the changed situation in some of the ports in Scotland where a large number of people are presenting themselves to a small coterie of immigration officers who do not have the backing of the police on the spot? I hope that I have interpreted what the noble Duke said with sufficient accuracy.

Baroness Carnegy of Lour: My Lords, I know that we are on Report, but these detailed points illustrate to the Minister that Clauses 1 to 4 are rather an important matter in Scotland. There is also the fact that one noble Lord, who regularly takes a firearm for sporting purposes to Glasgow Airport, says that he has to wait for 20 to 25 minutes for a policeman to be found to identify his gun. It is not much good waiting that long if you think a terrorist just got off an aeroplane and no policeman can be found. The immigration officer could not stop and search or arrest that person for up to three hours, although he could do if Clauses 1 to 4 were implemented. This is an important matter in Scotland, but that does not seem to have been recognised by the Scottish Executive. The Minister should proceed with speed to ensure that Clauses 1 to 4 apply to Scotland, either in this Bill or by the Scottish Executive themselves legislating, as he has just suggested they might.

Lord Bassam of Brighton: My Lords, I express my gratitude to the noble Lord, Lord Avebury, for reminding us of the detail of the discussion that we had at an earlier stage. He is quite right to do that. I understand and appreciate the issues that he raised, echoed by the noble Baroness, Lady Carnegy of Lour. She is precisely right: that is why I made the point about the Scottish Executive confirming that they are giving the matter further consideration.

The issue raised by the noble Lord, Lord Avebury, about a particular individual was clearly an operational one. I raised it with officials, who told me that they were generally satisfied with the working relationships between the Immigration Service and the police service and the support given by the police in those sorts of instances. On the cruise ships visiting the islands around Scotland, I understand that work on checking those on the manifest is generally undertaken at an earlier stage and that most of the issues that would potentially arise are resolved far earlier. This particular incident was of special concern, and the authorities are well aware of that. We continue to work with the Scottish Executive to resolve these issues. This is clearly an important matter, of which we are apprised. I am confident that we can secure the necessary co-operation in the future, as we have in the past, and that the arrangements should work well.

I said something a while ago that I ought perhaps to correct for the record, relating to my observations on the Immigration Service and how it acts being a reserved matter. I should have said that the conferral of functions on immigration officers to detain a person pending the arrival of the police is devolved. That clarifies that issue. Of course, immigration officers in Scotland have full powers to deal with immigration and immigration offenders, so there should be no confusion on that issue.

9 Oct 2007 : Column 163

Lord Forsyth of Drumlean: My Lords, I am grateful for the Minister’s comment that he may inadvertently have made a slip. In Grand Committee, he said that,

“the view has been taken that the activity of immigration officers is also a devolved matter”.—[Official Report, 25/7/07; col. GC 203.]

I can see that that was a slip and how the Minister meant it in context. I am grateful to him for making the position clear; that caused my earlier intervention.

Lord Bassam of Brighton: My Lords, the slip was indeed inadvertent. I was making a point in the context of a rather broader decision. I apologise to the House for that; I wanted to set the record straight.

If the noble Lord, Lord Hylton, will allow me to absorb the details that he has provided to the House, I will write to him on the specifics. That would be the fairest way to deal with that.

This has been a constructive debate; I have certainly tried to join the debate in a constructive way. We are making progress. I am just not sure that, in the end, we are motivated by the same spirit. I hope that, for the specific, technical and detailed reasons that I have outlined to your Lordships’ House, the noble Baroness and the noble Lords on the Liberal Democrat Benches will feel able to withdraw their amendments this afternoon. I certainly see this as a work in progress.

Baroness Hanham: My Lords, I thank the Minister and the noble Lord, Lord Avebury, for welcoming me to my new brief. I can see that the Bill will test me at these late stages. I am glad that we have provided another opportunity for discussion of devolved matters. The noble Duke, the Duke of Montrose, the noble Lord, Lord Forsyth, and the noble Baroness, Lady Carnegy, had an opportunity to open discussion on the fact that matters as important to the United Kingdom as immigration have been left, as I understood it from questions and responses, hanging in the air. I hope that those matters will be less in the air before the Bill completes its passage as a result of discussions that will take place.

The Minister was stinging about the amendment. He was stinging not about the proposal, but about how it was being put forward. Everybody is probably beginning to wonder whether rather more is required for patrolling our borders than an immigration officer with the powers to summon a constable. If the Cabinet Secretary is undertaking a review, why are we proceeding along the route set out by the Bill when it is clear that another Bill is waiting in the wings to roar along behind when the Cabinet Secretary has discussed the matter and made his views known? It seems strange to be proceeding in two stages. We will welcome the Cabinet Secretary’s review and look forward to seeing what it contains, but we have laid down a marker during the two previous stages of the Bill and said that we do not believe that an immigration officer alone, with the power to call in a constable, is sufficient to deal with all the issues that we see as being problems.

I accept that there are deficiencies in the amendment. I am afraid that we are not in the position to summon up 59 clauses and 49 schedules to

9 Oct 2007 : Column 164

deal with the matter and to delineate exactly how a border police force would work, but we are laying down a marker and saying that something like that will be necessary rather than the provisions in the Bill.

I accept that the amendment is not entirely what is required. It sounds as though we will have much more discussion on the way in which the borders are patrolled and the powers and responsibilities of a border force. We will come back to the matter at some stage, but not today. I shall therefore withdraw my amendment in due course.

Lord Avebury: My Lords, the Minister was a little ungracious. He cannot expect Members of the Opposition to draft amendments that extend to 79 clauses and eight schedules; we would not be thanked by your Lordships if we were to proceed in such a way. The normal method is for the principle to be established and then, if that is agreed, for the Government to go away and draft something that meets the agreed intentions of the House; it is not for proposals to be developed fully by those of us who do not have the resources of a whole department on which to call.

I had hoped that the Minister would respond to my intervention on NOMS. When NOMS was introduced, no legislation was in place; it was simply announced. A new entity which was supposed to cover end-to-end management of persons sentenced by the courts was being created, but it was not until long afterwards that we knew what NOMS was, how it would work, or the Government’s intentions for its management. So if that was what NOMS was meant to be—and I am not sure that one could say that about it—we are following a good precedent.

We also endorse the approach taken by the Government. We look forward with great keenness to the report mentioned by the Minister and think that it proceeds to some extent down the lines that both the Conservatives and we advanced at Second Reading and this afternoon. There is better integration and more co-operation between the agencies involved in controlling entry and residence in our country and, to that extent, we are of the same mind as the Government. So it is right that at this stage I should beg leave to withdraw the amendment.

Amendment No. 1A, as an amendment to Amendment No. 1, by leave, withdrawn.

Baroness Hanham: My Lords, I beg leave to withdraw the amendment.

Amendment No. 1, by leave, withdrawn.

Clause 2 [Detention]:

5.30 pm

Lord Judd moved Amendment No. 2:

Clause 2, page 2, line 22, at end insert—

“(7) Section 145(1) of the Immigration and Asylum Act 1999 (c. 33) (codes of practice) applies to an immigration officer exercising any power under this section.”

The noble Lord said: My Lords, in Grand Committee I drew attention to the concerns of the Joint Committee on Human Rights about the powers

9 Oct 2007 : Column 165

of immigration officers to detain, search and seize as proposed in the Bill. In its report of 21 May, the Joint Committee noted that the Government’s explicit purpose was to confer new powers on immigration officers that will be exercisable in connection with criminal—other than immigration—offences. This, the Joint Committee believed, would make their role in support of the police a general policing function, which should therefore appropriately be regulated by the codes of practice under the Police and Criminal Evidence Act 1984. Indeed, that was important in terms of rights established under the European convention. The Joint Committee was not convinced that the standard operating procedures to be introduced would be a sufficient substitute. The Joint Committee also emphasised the need for careful training of immigration officers.

It has now been possible to study the draft designation principles and the draft standard operating procedures, which have been made available since the Grand Committee proceedings. They do not appear to remove the cause of concern. The safeguards are not as strong as those in the PACE codes and will not, it seems, be properly scrutinised by Parliament. There is, therefore, a need to insist on the applicability of the PACE codes, amended if need be, to make them suitable for these powers. Any power to detain someone for up to three hours, to search their person and to use reasonable force in doing so, with accompanying criminal penalties for not co-operating, are tantamount to police powers and they should not be subject to inferior safeguards against improper use. The principle of proper parliamentary scrutiny of the adequacy of the safeguards is therefore vital.

With the leave of the House, I shall put some specific points on the drafts to my noble friend, as it is the first parliamentary opportunity to do so, in the hope that he will convincingly deal with the issues that they raise. First, on designation, I gather that detailed criteria for designation of immigration officers are still under consideration and will be “significantly more detailed”. What parliamentary scrutiny will they receive? If such designations are to be made by a,

“senior manager of at least Assistant Director level”,

on behalf of the Secretary of State, is that really senior enough in view of the responsibilities? Why is no mention made of human rights or any other relevant legal standards in the training part of the designation principles? Why are no provisions made for training to cover the dangers of unlawful racial profiling? If the designations are to be maintained by a “central unit”, exactly who will comprise this unit and at what level of seniority?

On the standard operating procedures, the draft is still very general. The detail is apparently to be developed in collaboration with police and other relevant stakeholders, but, again, what are to be the arrangements for scrutiny? Surely scrutiny will have to cover the operational guidance to underpin standard operating procedures and the use-of-force policy. While the draft SOPs make fairly detailed provision for the information to be given to a detainee when the

9 Oct 2007 : Column 166

powers to detain or search are used—for example, all the necessary records of any such action to be kept, and the information to be given on how to make a complaint—they still do not measure up to the PACE codes. For example, they do not measure up to Code G, which explains that the power interferes with the right to liberty and that accordingly it should be used only when the necessary objectives cannot be met by other, less intrusive means. By comparison with Code G of the PACE codes, with its detailed guidance on the necessity criteria for arrest, there is no guidance in the SOPs, as far as I can detect, on the criteria to be applied by an immigration officer to decide whether an individual may be liable to arrest by a constable. There is also no equivalent to the stipulation in the PACE codes that the code must be readily available at all police stations for consultation by police officers, other staff, detainees and members of the public. The draft SOPs do not have the same firm, clear guidance as that in Code A of the PACE codes that reasonable force may be used only as a last resort and that co-operation should still be sought, even when the person initially resists search.

The draft SOPs provide that searches should be conducted out of public view, except when the search is confined to a superficial examination of outer garments alone. Presumably, that envisages that, out of view, more intimate or strip searches could take place. In an annexe to PACE Code C, there is separate detailed guidance on such searches, but there is no guidance in the draft SOPs. To guard against any apparently disproportionate use of powers against particular sections of the community, there is no equivalent in the draft SOPs to code A of the PACE codes that stop and search powers should be carefully monitored for evidence of their being used on the basis of inappropriate stereotypes or generalisations.

We must never lose sight of our primary objective, which is to protect life, liberty and justice and to preserve freedom. This needs rigorous standards. I do not believe that the SOPs as presently envisaged will provide such standards, and I am certain that the devil will prove to be in the detail. That is why scrutiny is so important. I hope that on reflection my noble friend can agree to take this clause away and seek to persuade his colleagues to agree to the amendment. What we need is for the regulation thought to be appropriate to the police to be applied to this new, de facto policing body—and, if I may say so, all the more so to any combined border force as envisaged by the Prime Minister. This is highly relevant to the ongoing strategic battle for hearts and minds. I beg to move.

Lord Avebury: My Lords, this is the same as the amendment debated in Grand Committee, when it was grouped with an amendment that we tabled on applying PACE to designated immigration officers. We have not retabled that amendment now because we were reasonably satisfied with the Minister’s explanation of how these powers were to be used and with the draft standard operating procedures for designated immigration officers for the BIA that were placed in the Library, which the noble Lord analysed in some detail. However, as he said, the draft indicated that the procedures were to be developed to

9 Oct 2007 : Column 167

a greater level of detail in collaboration with the police and other stakeholders. Like him, I was unsuccessful in searching for the final version on the web. If it has not been published, as the noble Lord implied, I should be grateful if the Minister, when he replies, would say when we can expect it. It is unfortunate that we do not have an opportunity to scrutinise it when deciding these matters, and this is probably the last opportunity that we shall get. I have to say in passing that the BIA website is not well designed. I very much hope that if he has not already used it, the Minister will spend a few minutes looking at it and, if he agrees with me, will ask officials whether work is in hand to improve it. Web design for ease of use is particularly crucial when the information being presented is of such great importance to the future prospects of hundreds of thousands of people.

---