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On Report and at earlier stages, the noble Lord, Lord Avebury, and many others asked the Minister a series of questions about the code of practice, the point at which it was issued and, in particular, its development from the form in which it appeared in whatever kind of a draft it was reported to be in. A fortnight on, it would be interesting to know how that process is going, when it will be available and when Members of the House who have taken an interest in it might be able to see it. The character of this code of practice and the extent to which it covered what it was thought it needed to cover was of considerable interest and some concern on Report.
Lord Roberts of Llandudno: My Lords, I am sure the Minister must think that today is his birthday, with everyone applauding his new amendment. I join those who are saying that they appreciate it. My only point with regard to the amendment is this: how is it possible to include those who have current contracts as well as those who will have contracts in the future, so that the code will apply to those involved in this work at present? If the Minister could reply to that, I would be very appreciative.
The greatest possible care for our children and young people has featured prominently in our debates. I do not think we will be voting on the Bill today, but it does not get our whole hearted support. It could have been so much better if we had looked at the problem of asylum seekers and at giving them some opportunity to earn a living, thus helping them to establish themselves rather than undermine our economy. We will still be sad about the most unacceptable Section 9 of the Asylum and Immigration (Treatment of Claimants,
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Some people ask what the Liberal Democrats are for. On this sort of Bill, you know exactly what we are for: civil liberties and humanitarian issues. I think it was Andrew Rawnsley who wrote in the Observer on Sunday that if we did not exist we would have to be invented. We are still here. I thank my colleague who has again led on the Bill, my noble friend Lord Avebury, for his considerable contribution over so many years. He won a by-election in 1962, and for 45 years since then he has battled on these humanitarian issues. It has been a great privilege to be able to share the Bill with him. He has had a noble and notable career that we should all applaud, particularly the most vulnerable in our society who have benefited from his campaigning over many years.
We are happy with this amendment, but sad that others have not been accepted which could have been so beneficial to so many people.
The Archbishop of York: My Lords, I have missed out on quite a number of the goings-on in here, but I am surprised that the clause on children has no reference to the Children Act, which is one of the best pieces of legislation in the land. Why is Every Child Matters not forming the background to dealing with children of asylum seekers and immigrants? There is a sense in which the Bill, with its points system, is going in the right direction, but it surprises me that those wonderful pieces of work do not somehow have an echo within the Bill.
Lord Bassam of Brighton: My Lords, I am going to take the responses to this amendment as a compliment. I have been accused of not giving too much away; if that is the case, I take that as a measure of success from the Government’s perspective. I am grateful to the noble Lord, Lord Roberts, for his observations. He tempted me with the question, “What are the Liberal Democrats for?”. I am not going to provide an answer from the Dispatch Box. With the current state of play, it would be too much of an open goal to punt towards.
I will try to respond to some of the points that have been made. As regards whether the code of practice can apply retrospectively, the advice that we have received is that it can be applied to existing contracts through the notice of change procedures already in place. We intend to ensure that the Border and Immigration Agency has a system of monitoring contractors’ performance by measuring them against a set of standards devised for the specific activities that they carry out for the agency. There is already a set of standards for activities involving families, but we will also consider whether new standards for children are needed when the code is formally introduced. Noble Lords should be reassured by that because it goes back to the issue that we discussed earlier about standards.
The noble Lord, Lord Avebury, asked about private fostering. The draft code states that local
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The most reverend Primate the Archbishop of York said that there was no reference in the code to the Children Act. As I said, we are consulting NGOs about incorporating some of the concepts and policy intentions behind the Children Act, including those in Every Child Matters. The consultation is directed less at the legislation itself than at its spirit, which we are trying to incorporate. That is the most important thing and is urgently needed. We need to ensure that we carry on raising the threshold and the standards. I am grateful to noble Lords for their generally supportive comments.
On Question, amendment agreed to.
4.30 pm
Lord Bassam of Brighton moved Amendment No. 5:
(b) take appropriate steps to ensure that persons with whom it makes arrangements for the provision of services have regard to the code.”On Question, amendment agreed to.
Baroness Carnegy of Lour moved Amendment No. 6:
The noble Baroness said: My Lords, despite discussion of this matter at previous stages, I make no apology for raising it again, because crucial uncertainties remain and require urgently to be clarified.
The amendment was incorrectly worded when it was tabled last week. I asked for it to be redrafted and the new wording was tabled yesterday. I hope that that did not inconvenience noble Lords too much, particularly the Minister and his advisers.
If accepted, the amendment would ensure that Clauses 1 to 4 extend to the whole of the United Kingdom, not just to England, Wales and Northern Ireland. That is important for the security of us all. If we are to have the protection of designated immigration officers who, if police are momentarily absent at the point of entry, can stop and search and, if need be, detain a suspect for up to three hours until a policeman arrives, we need it at every point of entry throughout the United Kingdom, not just at some entry points. That seems to me patently obvious.
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This measure may be only an extra failsafe mechanism, but it is important. As your Lordships know, the Scottish Executive have until recently taken the view that at the seven main points of entry in Scotland the police are always present, so this failsafe mechanism is unnecessary north of the Border. However, during the passage of the Bill, it has emerged that, from time to time, as elsewhere in the United Kingdom, the police at these points are briefly absent. In any case, there are a number of vulnerable Scottish entry points beyond the seven already looked at by the Scottish Executive.
Despite the fact that immigration is not devolved, but is reserved to Westminster, the Government have decided to leave this matter to the Scots Parliament. Therefore, we come to the need for clarification. On Report, the Minister said:
“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”.—[Official Report, 9/10/07; col. 161.]
In the light of that statement, the clarification that I want to ask of the Minister is threefold. First, does the Scots Parliament have the power on its own to implement these measures at all? Secondly, in view of the legislative procedure there, if the Executive have the power and succeed in legislating, how long would it take until the whole United Kingdom is protected? The Law Society of Scotland points out that there could be quite a long delay—of some two years—because of that legislative process. Thirdly, what happens if the Scottish Executive have the power but, being a minority Administration, fail in their attempt to legislate?
I have given my questions to the noble Lord and I wonder whether he can answer them. In the light of those answers, how do the Government intend to fulfil their responsibility under the Scotland Act to protect the borders of the whole of the United Kingdom? Would it not save everyone a great deal of trouble if the Minister accepted this amendment to the Bill now? I beg to move.
The Duke of Montrose: My Lords, I support my noble friend Lady Carnegy of Lour. On Report—again, on 9 October, at col. 161—the Minister was very clear when he said that immigration officers are not a devolved matter. The other reassuring element that he emphasised is that the power of arrest for assault will be transferred to immigration officers throughout the United Kingdom. The Minister went on to try to explain:
“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”.—[Official Report, 9/10/07; col. 161.]
That phrase skirts around the question; “a devolution issue” does not pin down for us whether it is a devolved issue or a reserved issue. However, so far so good; the police are to act in support of immigration officials, as they do now and, as this Bill seems to contend, they will do so for some long time. As my noble friend said, we have been led to believe that, with the best will in the world, the legislation will not be put forward before March 2009.
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Unfortunately, it appears that we did not go into the fine detail of the powers required for immigration when we debated paragraph 7 of Part 1 of Schedule 5 to the Scotland Act. So it is all the more important that our discussion today should make the issue absolutely plain. When this provision was before the House, we looked at other aspects to which it applied. The noble Baroness, Lady Ramsay of Cartvale, said:
“We fully accept the importance of ensuring that in all parts of the UK there is a common system to govern”.—[Official Report, 21/7/98; col. 869.]
In this case, she was referring to the import of illegal drugs, but perhaps the Minister can understand why some of us are puzzled about why the Government have had a change of heart when it comes to immigration officers.
We are told that the Scottish Parliament will legislate, but Clauses 1 to 4 deal with the powers of immigration officers, not those of the police. Can the Minister explain a little more about the mechanism that is proposed to achieve this transfer of powers in the Scottish context? I am sure that the Minister is aware that Section 29 of the Scotland Act says:
“An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament”.
Surely if the Scottish Parliament passed a Bill conveying the same powers as are in this Bill, further down the line a smart immigration lawyer will take an appeal, as is allowed under Section 102 of the Scotland Act, to “any court or tribunal” and contend that in this matter the Scottish Parliament is ultra vires. We will be back to calling on the supervisory powers of the Court of Session to try to sort it out.
The mischievous side of my nature says that if Scottish law is currently considered adequate to enforce our borders, what is so deficient in English law as to make Clauses 1 to 4 necessary? Of course, in principle, our party is anxious to see that our borders are regulated as properly as they can be. If any other route of allocating powers is used, surely it will mean that immigration officers will not have the same powers in Scotland as they have in the rest of the UK. The only way to guarantee that they have the same powers is to pass my noble friend’s amendment.
Baroness Hanham: My Lords, my name is added to this amendment, in support of my noble friend. At this stage it would be extremely helpful if the Minister would clarify exactly how the Government intend to resolve the inconsistencies within the Bill, which change immigration procedures for half—or two-thirds—of the country, but not for the remainder. There has been, as the Minister may be aware, surprise and dissatisfaction among bodies in Scotland, because the Government do not appear to have acknowledged that they have only a minority in the Scottish Parliament and so cannot pronounce on what legislation it might or might not be able to pass.
The Scottish Law Society has pointed out that, whatever the results of the current review in Scotland, legislation takes time to be drafted, debated and implemented. A period of at least two years is likely to elapse before any significant legislation can be
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Both my noble friends Lady Carnegy of Lour and the Duke of Montrose have given clear explanations of what is now wrong with this Bill. Although this matter has been raised previously, the Minister now has chapter and verse on what is wrong with it and why the exclusion of Scotland from Clauses 1 to 4 will be so detrimental to the control of our borders. I very much hope that he will be able to give a satisfactory response.
4.45 pm
Lord Avebury: My Lords, this is the third time that we have dealt with this matter. The noble Baroness has really put her finger on something that requires attention even at this 11th hour and 59th minute. As I understand it, under the extent clause, Clause 60, Clauses 1 to 4 apply only to England and Wales. Therefore, the powers of immigration officers in those clauses are not operative in Scotland. Because immigration is not a devolved matter, I invite the Minister to agree that extending those powers to Scotland could be done only by the United Kingdom Parliament and not by the Scottish Parliament, which is not enabled to legislate on the functions of immigration officers any more than it does any other immigration matters. Although it was originally said that it had been agreed between the Labour Party in England and its counterparts in Scotland that if the Labour Party had won the election in Scotland it would have introduced legislation in the Scottish Parliament, the Labour Party might have been advised, had it gone further down that road, that that was legally impossible.
We are confronted with a situation now where immigration officers have the powers in England and Wales to detain and search a person for up to three hours, pending the arrival of a police officer, but in Scotland they cannot do so. Yet, as we heard at earlier stages of the Bill, it may be even more necessary in some of the ports of entry in Scotland for that power to be exercised. There may be only one immigration officer—for example, in Shetland—and the police officer may be nowhere near the airport. I do not know what the immigration officer would do if he was confronted with a situation in which he would have exercised those powers had they been available to him, but he could not do so because the Act did not apply. If a police officer cannot be on the spot within the few minutes that it takes for the immigration officer to decide that a person ought to be detained—no doubt the person will abscond when he realises that this is the objective—it will be too late. The Minister needs to confront the situation and explain the long-term answer. Are we going to have to wait for further legislation in the United Kingdom Parliament before we can put this right?
Lord Bassam of Brighton: My Lords, as ever, I am grateful to the noble Baroness, Lady Carnegy of Lour, for her very subtle and well informed interventions in this Bill and in other Bills. She always
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The amendment would extend the provisions in Clauses 1 to 4 on detention at ports to Scotland. This matter has been aired in this House and in the other place on more than one occasion. Before dealing with the substance of the amendment, I stress that Clauses 1 to 4 do not change any arrangements for controlling immigration or for regulating our borders. Immigration officers in Scotland have the same immigration powers as those elsewhere in the United Kingdom, and the clauses do not alter that.
The provisions in this Bill, in substance, deal with criminal justice matters and not the control of immigration, which is, of course, a reserved matter. The Sewel convention states that the UK Parliament will not legislate in a devolved area without the consent of the Scottish Parliament. That is quite proper. The Government remain fully committed to respecting the devolution settlement.
We have discussed in some detail, during debates in Grand Committee and at Report stage, the detention at ports provisions and their non-application to Scotland. I am sorry that I have not yet been able to allay all the concerns expressed on this issue. In seeking to do so now, I will address the fact that, during our previous discussions, some of the debate—
The Duke of Montrose: My Lords, if an immigration officer wishes to detain somebody, how does that become a criminal justice matter? I do not fully grasp that.
Lord Bassam of Brighton: My Lords, it may well be that the person whom they are seeking to detain has effected a criminal offence. If your Lordships will let me carry on with the flow of the argument, I want to address—
Baroness Carnegy of Lour: My Lords, I am sorry to interrupt the Minister again. He said that it may be that the person who is detained has committed a criminal offence, but it may be that he has not and is just a suspect. Could the Minister answer the question of my noble friend the Duke of Montrose?
Lord Bassam of Brighton: That is the point, my Lords; there may be many reasons for a detention. I would quite like to proceed through answering the questions. I want to address the fact that during our previous discussions the provisions in Clauses 1 to 4 were viewed by some as being a proxy in some way for the unified border force. They are not. Decisions on the shape and scope of the unified border force will be taken only once the Cabinet Secretary’s report is
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I will explain why we do not agree with the noble Baroness, Lady Carnegy, that the amendment is necessary or appropriate. Although immigration is a reserved matter, the detention at ports power will be used by designated immigration officers at ports to allow for the detention of people pending the arrival of a constable. I stress again that this is not about border controls; immigration officers in Scotland will continue to have the full range of powers under immigration and, importantly, terrorism legislation.
Furthermore, these clauses do not concern the power of immigration officers to arrest individuals for immigration offences, or to arrest a person whom they have reasonably suspected of assaulting an immigration officer. All those powers apply in Scotland as they do in England and Wales. These powers are not for the reserved purposes of immigration or terrorism, but for the purpose of assisting the police for general policing. In Scotland that is a devolved matter. The rationale is that the border is a convenient pinch point for identifying those who may be liable to arrest. This power will assist the police in delivering that objective and will most likely impact on British citizens and EEA nationals as we increasingly merge police databases with immigration watch-lists under our e-borders programme.
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