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I listened carefully to what the Minister said about the co-operation which he says is being built up with the various police forces in and around the border and about the various implications. However, I am still unconvinced about the desirability of entirely incorporating the police into a force, although I think that it is. I shall read very carefully what has been said. It is still my view that we will miss a trick if we do not incorporate the police and ensure that they are more than consultees in what is going on in defence of our borders. Every one of us here is interested in ensuring that we have the best possible mechanisms for ensuring that our borders are safe and secure, so that they are intimidating where they have to be intimidating but welcoming where they should be welcoming. We need proper personnel dealing with it.

For today's purpose I shall withdraw my amendment. I will consider carefully what has been said before deciding whether to return to it at Report. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

5.15 pm

Clause 1: General customs functions of the Secretary of State

Amendment 3

Moved by Baroness Hanham

3: Clause 1, page 1, line 6, leave out “general”

Baroness Hanham: We start now on the more detailed scrutiny and consideration of the Bill. Some areas may already have been covered a bit; I apologise if we go back over some of them.

Amendments 3 and 5, in Clause 1, are probing amendments, as are many of the other amendments coming forward today. They are intended to probe the functions of the Commissioners for Her Majesty's Revenue and Customs and the powers being transferred to the Secretary of State and the UK Border Agency. As I noted on Second Reading, Part 1,

I also expressed concerns about the proposals. We have already covered some of those concerns. They include the Government’s capacity or competence to handle sensitive information; the extension of policing powers being given to the UK Border Agency—by default really, because there are no police; and the level of training to be provided to officials of the agency.

I think that we will be going through subsection (8) in detail but should like to know now what is meant by “general customs function”. It is a new phrase. We know about the customs functions that are part of Her Majesty’s Revenue and Customs, but what are the general customs functions relevant to the Bill? Once we know, we can decide whether we feel it appropriate that they should be transferred. I beg to move.

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Lord Avebury: The noble Baroness’s amendment allows us to explore what powers and functions immigration officers will have when they are acting as customs officers as opposed to what they will not have, which is spelt out in Clause 1(2). The powers of HMRC officers, as far as we know, are specified in the Customs and Excise Management Act 1979 and the Finance Act 2008. They include a number of powers which are clearly not relevant to border posts, such as visiting and inspecting without obtaining consent and searching computer records; and other powers which may be exercisable at the borders, such as invasive physical search, seizure of goods, impounding aircraft and ships, and powers to arrest and detain. What we need to know in each of these cases is whether these powers will be exercisable by immigration officers and where to look for the particular statutory authority that confers those powers on them.

The Finance Act 2008 renews the criminal offence of destroying or concealing records and introduces several penalties for non-compliance. It requires a third party to provide information and documents for the purpose of checking a person’s tax position, and the definition of “tax position” outlined in the same Act would appear to require the possession of personal data that could be of use in the immigration context. Under existing immigration legislation, requirements relating to third parties are narrowly defined, so the obligation for third parties to provide information for immigration purposes seems to be a major increase in powers and constitutes a substantial intrusion into civil liberties. If that is correct, the Government, so far as I see it, have made no attempt to justify this potential interference with Article 8 rights.

HMRC powers of arrest allow a person to be arrested for an offence that was allegedly committed up to 20 years before. Can we have an assurance that that would not apply to immigration offences? What safeguards are there in the Bill against the extension of HMRC arrest powers to immigration offences?

We have a broad policy concern, as my noble friend has already said, about the continued association between immigration and criminal activity, which is potentially underlined by the merger of immigration and HMRC powers. The 1979 Act’s search powers for a customs officer are directed at persons who may be carrying any item that is prohibited or restricted, or which is liable to excise duty or tax that has not been paid, and the threshold for suspicion is low. The search may extend to a strip search and an intimate search, and HMRC officials may detain for as long as is reasonably necessary while a search is carried out. If a person does not agree to the search, the customs official may arrest him.

Under the Bill, UKBA staff will be able to carry out physical examinations at the border, either of their own volition or at the request of HMRC. Although they have their own powers of detention, the search powers that they have already under the 2007 Act are being enhanced. What assurances can the Government offer that UKBA officials will not inappropriately use powers that are designed for customs purposes in immigration control? Will they be obliged to serve a

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notice on the subject who is being searched or detained, specifying the Act or SI under which that power is being exercised?

Liberty is concerned about the power of HMRC officials to take fingerprints and DNA samples, and we are worried about the progressive extension of taking and retaining biometric information. We are particularly concerned about the failure of the Government to respond to the judgment of the European Court of Human Rights in the S and Marper case, where it was found that our policy on the retention of DNA samples was in breach of Article 8.

We will be raising that issue under Amendment 111, but I give notice that I shall be mentioning the particular case of a British citizen who was stopped at Heathrow terminal 1 and required to give fingerprint and DNA samples which are to be retained indefinitely, in contravention of the judgment. I wrote to the Secretary of State about this on 5 December, the day after the judgment, and had an unsatisfactory reply from the Minister of State, Mr Vernon Coaker. I will give the reference so that the Minister can look it up: it was M50/9, dated 14 January 2009. At the time of the judgment, almost 900,000 samples were being retained from people who were never charged or convicted subsequently of any offence. I take a very serious view of this matter, which we will need to discuss in more detail later on.

Lord Brooke of Sutton Mandeville: I apologise for a short exercise in parsing, but the Minister may be able to help me by confirming that I understood this correctly. General customs functions are alluded to in the first four lines, from Part 1 downwards, and a definition is given in Clause 1(8):

“In this Part ‘general customs function’ means a function exercisable in relation to a general customs matter”.

That does not, of itself, tell us what a general customs matter is. I realise that subsection 2(a) to (e) allude to a general customs matter. Am I right in thinking that, patently, revenue customs functions fall within subsection 2 (a) to (e) but that some of the latter are matters that are clearly the responsibility of the commissioners but not actually cash revenue issues? It would be helpful if the Minister gave us a phrase that described those functions that remain with HMRC but which are not specifically tax revenue. I hope that question is clear. If it is not, I would be glad to clarify it.

Lord West of Spithead: The noble Lord was referring somewhat to points raised by the noble Baroness, Lady Hanham, in terms of the distinction between customs functions in general customs matters and in revenue customs matters. It is the same issue about the extent of the split. The “general customs matters” is a phrase that has been coined for non-customs revenue matters in relation to which the Secretary of State may exercise functions concurrently with the commissioners.

General customs matters are, as I mentioned before, things such as drugs smuggling, weapons smuggling, plant and animal health controls and endangered species controls. Revenue customs matters are things such as collecting duty in the red channel, catching tobacco smugglers and fining, and charging duties on postal packets.

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Lord Brooke of Sutton Mandeville: I wholly understand that. I have no problem with understanding the revenue functions. Money laundering does come into this subset, but is not, to the best of my knowledge, a specifically revenue-raising exercise—although the penalties may be. If we are discussing a general customs matter as being distinguished from the five items 2(a) to (e), but not all those are tax revenue items, can the noble Lord give us a phrase that we can allude to in shorthand hereafter, so that we know what we are talking about?

Lord West of Spithead: I do not think that I can off the top of my head. Clearly, there is confusion. If I may, I would like to think about how we might clarify that. It is not in anyone’s interest to have confusion on this. The distinction between the customs functions that the Secretary of State may exercise and those vested in the Director of Border Revenue are extremely important. Therefore we must make sure that they are clear in everyone’s mind. Perhaps we have not done that sufficiently well. Therefore, I will take that away to look at it to ensure that it is clear.

We try to use the description “customs revenue matters” in relation to the way in which the Director of Border Revenue may exercise functions concurrently with the commissioners. “General customs matters” is the term coined for non-customs revenue matters in relation to which the Secretary of State exercises functions. It is important that those two functions are separated to ensure which provisions are relevant and applicable to each set.

The term “general customs matters” does not mean that the Secretary of State will be able to exercise all of the non-revenue functions of the commissioners for revenue and customs. He will not be able to exercise all of them. In addition to excluding revenue matters from the definition of “general customs matters”, we have also tried to be careful to exclude other non-revenue functions of the commissioners, which the Secretary of State will have no need to exercise, such as, as mentioned by the noble Lord, regulation of money and service businesses, which impinges on money laundering and the like.

I hope that that will clarify the position for the noble Baroness and show the importance of having those distinctions clear in our mind. On that basis, I hope she will be content to withdraw her amendment.

The noble Lord, Lord Avebury, asked about provisions relating to customs offences applying to immigration. I understand his nervousness; indeed, I would like to take this opportunity to say that Part 1 is aimed at having a stronger border force and making the nation safer. There is no intention to criminalise immigrants or immigration, and we are not trying to relate counterterrorism provisions to immigration either. The provisions relating to customs offences will continue to apply only to customs matters and not to immigration. The powers may be used by designated customs officials in the border force in respect of those particular customs offences, so there is a division—they will not be used for other matters. Officers have to be very clear about whether they are exercising customs or immigration powers—it is part of their training. They cannot use customs powers for immigration purposes, or vice versa.

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5.30 pm

Baroness Hanham: The Minister has tried very hard to help us. However, he is handicapped by the fact that neither he nor we have access to Schedule 1 to the Commissioners for Revenue and Customs Act 2005 which I suspect delineates which areas would be general customs matters to be passed over. I am assuming that a general customs matter being taken out of Schedule 1 means that there are other powers left behind in the schedule for Her Majesty’s Revenue and Customs to continue to use. It is a great shame that the Bill is so truncated because those powers and responsibilities are not delineated in it. It is of fundamental importance what these officers will do and what powers they will have. It is extremely difficult to discuss the Bill without being quite clear what those are and being able to see the build-up in Part 1—it begins as a germ and becomes a virus—of how this is being done.

I should be grateful to have from the Minister’s officials a list of what general customs matters are. As I say, I suspect that they come out of Schedule 1 to the Commissioners for Revenue and Customs Act, but if not, I should be glad to know that. Before the next stage of the Bill, we want to know what will be done in the name of the Secretary of State that was previously done in the name of Her Majesty’s Revenue and Customs. Otherwise, this part of the Bill is too opaque for us to be able just to let it go through.

Lord West of Spithead: I have sympathy with what the noble Baroness is saying. As I said earlier, the revenue customs matters include collecting duty in the red channel, catching tobacco smugglers and charging duty on post and packets, but I am not sure that that is the totality. I assure the noble Baroness that we will get that information so that it is quite clear what has been pulled out of the other Act. It needs to be absolutely clear. But having said that, I think it is right that some of these revenue customs matters have to go across because there is a border requirement for them. I will ensure that my team gets that information and lets all those who are party to the debate see it.

Baroness Hanham: I am extremely grateful to the Minister for saying that he will do that. “General customs matters” do not seem to be revenue matters, which is where we get into difficulty as to what we are talking about. Since everything comes from Her Majesty’s Revenue and Customs, there are two tranches to it. In this part of the Bill, the “general customs matters” seem to relate to the duties of the customs officers in their guise as Customs. Later parts of the Bill relate to the revenue aspects which are being passed down, which I presume are separate. They will then be amalgamated into one when those officials become all-singing and all-dancing. In the interests of clarity, please may we know the revenue powers that are being passed down from Her Majesty's Revenue and Customs and the general customs powers, because I suspect that they are different and are two separate streams?

Lord West of Spithead: They are different, but they are functions exercised by customs officers. The “general customs matters” such as drug-smuggling are those in

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which the immigration authorities can already be involved. The provision merely clarifies the reporting lines, because matters to do with Revenue and Customs—for example, the funding side—cannot be dealt with directly by the Secretary of State. A rule separates those matters and they have to be handled through HMRC. We therefore need to identify those two areas separately.

Baroness Hanham: I would be grateful if the Minister would do that. We are likely to return to this matter at the next stage, but, for today, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by Baroness Hanham

4: Clause 1, page 2, line 19, after “applies” insert “only”

Baroness Hanham: Amendments 4, 9 and 18, which make up this group, are also probing amendments, designed to find out what enactments, instruments or documents relating or referring to the Revenue and Customs are intended to be applied to immigration officers—if a third tier of functions is not going to be incorporated in one person or if they going to operate on their own—and other officials of the Secretary of State. We would like it clarified that future Acts will not be included by this provision in a way that prevents proper scrutiny, because the Bill rather suggests that that is what could happen.

What future Acts does the Minister have in mind, if any? The provision looks like mission creep without the benefit of parliamentary scrutiny. Perhaps the Minister could let us know which likely orders we need to keep an eye on to make sure that things are not happening without Parliament’s knowledge. I beg to move.

Baroness Miller of Chilthorne Domer: The noble Baroness has raised further interesting points. One issue, which goes back to our debate on the previous group of amendments, is how the users of this service, the people who are coming into the country, will know what officials are allowed and not allowed to do. That may seem a nicety, because it is obvious that the officials are there to keep our borders safe, look after visitors and check that they are not criminals. However, if they stop an innocent person and subject them to searches, that person has a right to be completely clear about what officials are entitled to do and at what point they can appeal against the officials’ action because it is beyond what they are entitled to do. If we are confused as to who can do what, when, to whom and how, it will be much more confusing not only to people coming in who speak English but also to those who do not do so, and even possibly to their lawyers should they need to resort to them. Will the Minister indicate how he sees some guidance on those matters, even at the most basic level, being extended in ports and airports? It may state, for example, “These officials have the right to do this. If they ask you to, you should comply. They do not have a right to do this, and, in these circumstances, you would be entitled to consult X”. What guidance will be available?

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Lord Brooke of Sutton Mandeville: I ask this only to test whether I have understood the text of the Bill correctly. I am looking at the passage that says:

“This section applies to ... an enactment passed or made before the end of the session in which this Act is passed, and ... an instrument or document issued before the passing of this Act”.

Those seem to me to be helpfully exclusive statements. The second, relating to Acts already passed, is straightforward. The Bill is then saying that the only other kind of enactment that could apply would be one that, because this is a running issue, may be passed after we have concluded the business of this Bill. In that case, the word “only” would not be needed, because it would exclude any Bill or enactment subsequently. If I have not understood that correctly, I have no doubt that the Minister will tell me.

Lord West of Spithead: Clause 1 already expressly limits the general customs function that the Secretary of State may exercise concurrently with the commissioners to those contained in enactments, instruments or documents passed, made or issued, as the case may be, before the end of the parliamentary Session in which this Bill is passed. The insertion of the word “only”, as suggested by Amendment 4, is therefore unnecessary. However, Clause 2 allows provisions to be made by order for functions conferred on the commissioners in enactments passed or made after the end of the Session in which this Bill is passed to be exercisable concurrently by the Secretary of State. This provides the necessary flexibility to respond to future changes in the commissioners’ functions and to allow the Secretary of State to exercise those functions when it is appropriate that she should do so.

The order-making power in Clause 2, subject as it is to the affirmative resolution procedure, provides the appropriate level of parliamentary scrutiny for the making of any such provision. Various non-customs and revenue functions are given to the commissioners by various enactments: the Postal Services Act, the Proceeds of Crime Act 2002, the Public Health (Control of Disease) Act 1984, the Merchant Shipping Act 1995, and so on. It is likely that future Acts may do likewise and may give functions to the commissioners, the Secretary of State or both. However, it is also sensible to retain some flexibility to allocate functions by order, in view of the new arrangements at the border and the likely need for HMRC and the UK Border Agency to have a role in enforcement of future matters. The noble Lord, Lord Brooke, is absolutely correct in his interpretation of what he read.

I am not altogether clear what Amendment 9 seeks to achieve, but in practice it would have no effect. Clause 3(7) as drafted provides that the enactments, instruments or documents to which Clause 3 applies are enactments passed or made or instruments or documents issued before this Bill is passed and, subject to express provisions to the contrary, enactments that are passed or made or instruments or documents issued after this Bill is passed. Inserting the word “only” makes no difference at all to that, as it does not alter the enactments, instruments and documents to which Clause 3 applies. The effect of Clause 3 as drafted is that, so far as appropriate, general customs functions conferred on HMRC in enactments, instruments

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or documents made, passed or issued before the end of the Session in which the Bill is passed or, unless expressly provided otherwise, after this Bill is passed will be deemed to have been conferred on designated general customs officials as well. This clause therefore provides the mechanism by which a designated general customs official will have access to the functions, powers and protections afforded to an officer of HM Revenue and Customs in respect of general customs matters both now and in future. It also ensures that policy guidance and instruction documents issued to officers at HM Revenue and Customs will apply where appropriate to a designated customs officer.

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