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Generally speaking, it is right that functions, new or amended powers and protections that are granted to officers of HMRC in the future should apply automatically, together with the associated policy guidance. This reflects the fact that, although the UKBA will be principally responsible for the exercise of these functions at the border and HM Revenue and Customs for their exercise inland—these are the two separate chunks—in many cases they will be exercising the same powers. Where it is not appropriate, however, for functions and powers conferred on officers of HMRC to be given automatically to designated general customs officials, this can be provided for expressly.

In the absence of a provision in Clause 3 ensuring that any general customs functions conferred on officers in future are usually conferred at the same time on designated general customs officials, unnecessary inconsistencies might arise in the respective approach of the UKBA and HMRC to the exercise and protections afforded in respect of the same customs functions.

As regards Amendment 18, Clause 7 already limits the scope of the director’s functions to those contained in enactments made or passed before the end of the Session in which this Bill is passed, or in instruments or documents issued before the passing of the Bill. Therefore, I believe that the amendment is unnecessary.

On the point made by the noble Baroness, Lady Miller, I do not have at my fingertips exactly what guidance will be available. I am not exactly sure what guidance is available at the moment when one goes through customs and immigration. Generally, I tend to do what they tell me to do as long as it does not seem illegal. However, I shall certainly find out what that is and come back to her.

On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.

5.45 pm

Baroness Hanham: I thank the Minister for that reply. As I said, many of these amendments are probing. The purpose of inserting “only” by way of Amendments 4 and 18 was to try to ensure that these matters do not refer to legislation that goes way back, which could mean that we had no idea of what we were altering. I am still slightly less happy about modifying any enactment passed or made after the passing of this Bill. I hear what the Minister says but I shall want to consider whether I need to come back to that aspect. I shall want to read carefully what has been said, although I am content with the replies on the other two provisions. For today, I beg leave to withdraw the amendment.

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Amendment 4 withdrawn.

Amendment 5 not moved.

Clause 1 agreed.

Clause 2 agreed.

Clause 3: Designation of general customs officials

Amendment 6

Moved by Baroness Hanham

6: Clause 3, page 3, line 17, leave out from “officer” to end of line 18

Baroness Hanham: Amendments 6 and 8 probe—they may refer to what we have already discussed, but I hope that the Committee will forgive me if that is the case—what customs functions and powers are to be passed to the Secretary of State. The Minister has already given a commitment to ensure that we shall be told what the customs functions are, but the powers are a different matter. The amendments also probe who, other than immigration officers, it is intended will be able to exercise these powers. Will they apply to the new customs and revenue officers?

Amendment 7 is designed to ask what functions, other than those customs functions of a revenue and customs officer, it is intended that Clause 1 will confer on the Secretary of State. We do not think that it is acceptable to transfer functions without first knowing more about who will exercise them and how extensive they might be. To some extent, that includes the delegation of functions and how low that goes.

Amendment 10 is a precautionary measure. Parliament must be allowed a final say on the transfer of these functions. Given how little we know about the practicalities of the Government’s plans, we would like Parliament to have the right to retain a say on how they are worked out in future. I beg to move.

Lord Avebury: Can the Minister tell us in which other enactments powers conferred on any Secretary of State are exercisable by an official designated by him? Is this not a rather unusual provision?

Lord West of Spithead: Perhaps I may first answer the last question. It is quite usual for a designated official below a Secretary of State to carry out functions that are the responsibility of the Secretary of State. That is not unusual; it relates to the Carltona principle, which stems from a specific case.

I shall deal with Amendments 6, 7, 8 and 10 as a group. These amendments, by restricting the Secretary of State’s ability to designate officials in her department as designated general customs officials, would effectively take away many of the advantages of the integration that Part 1 aims to achieve. I hope that I have explained why we are trying to achieve it. Significantly, they would hamper the effectiveness of individual officials exercising combined customs and immigration functions on behalf of the UK Border Agency. Therefore, I must resist these amendments.

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Some 4,500 existing revenue and customs officers, as I mentioned, will be transferred to the new border force to carry out customs functions. On their transfer, they will no longer be officers of HMRC and will need to be designated under the provision in Part 1 to enable them to continue exercising the customs functions that they currently carry out. Depending on his or her role, a designated general customs official will need to be able to exercise some or all of the functions in relation to a general customs matter that are currently exercised by an officer of Revenue and Customs.

Amendment 6 would mean that officers who transfer from HMRC to the border force and become officials of the Secretary of State could not be designated to exercise general customs functions unless they were first appointed as immigration officers. We believe that this is unnecessary. While in the future the majority of the UK Border Agency officials at the front line will exercise immigration and customs functions, and therefore will be appointed as immigration officers, this may not be so in every case. Specialist roles and skills will also be retained by some of the agency’s officials—for example, by those exercising general customs functions at the postal hubs and by drug-detector dog handlers at airports, who are the very people that the noble Lord referred to earlier. Those officials will not require immigration powers to perform those specific functions.

An officer of Revenue and Customs currently exercises two sets of functions: those that are vested directly in him or her as a customs officer and those that he or she exercises on behalf of the Commissioners for Revenue and Customs. Likewise, a designated general customs official will need to be able to exercise both sets of functions, subject to any limitations that are placed on an individual’s designation to reflect his or her particular role. Designated customs officials will, for example, need to make decisions on the return or disposal of seized goods. These are day-to-day operational decisions currently taken by officers of HMRC on behalf of the commissioners in accordance with a framework of policy and guidance laid down by the commissioners.

In the future, designated customs officials will need to be able to take these decisions on behalf of the Secretary of State so that the border force can run its affairs effectively and efficiently. Amendment 7 would prevent those officials from taking those decisions and would leave all such decisions to be taken personally by the Secretary of State.

Amendment 8 would remove subsection (3) from Clause 3. The purpose of that subsection is to make it clear that, notwithstanding the exercise of the Secretary of State’s general customs functions by designated general customs officials, the Carltona principle, to which I referred, is preserved. I am sure that noble Lords will appreciate the importance of the Carltona principle, in accordance with which the Secretary of State’s functions may be exercised by any of her officials. Clause 3(3) ensures that this important principle is preserved.

Before designating a general customs official under Clause 3, the Secretary of State must be satisfied that the capability, training and suitability requirements set

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out in Clause 4 are met. This issue of training has been raised a number of times. The noble Baroness, Lady Hanham, has particularly emphasised it and I agree entirely about its importance. The Government are satisfied that the robust designation process established by the Bill is the appropriate one, so I must resist Amendment 10, which would add a layer of parliamentary scrutiny to this, as unnecessary and disproportionate. The amendment would place a great burden on Parliament, necessitating each designation of a general customs official to be approved by both Houses before being made. While I am sure that more of the noble Baroness’s time at the Dispatch Box would greatly please noble Lords, I doubt whether the Committee would like to be detained any more on this, as I have been going on at length. In light of this explanation, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Hanham: I thank the noble Lord again for his response and helpful explanation, some of which is essential. Our words go into Hansard, so that people know what is going on. I do not think that I have come across such generality of legislation and terminology as there is in this Bill before. Maybe that is just my ignorance. When it refers to,

then it is helpful to have had the noble Lord’s explanation that that person has to be an appropriate person of an appropriate standing, because you could read into this Bill and these terminologies that the Secretary of State could say to anybody running down the corridor, “Come here, we need you to do a little bit of this or that function”. That is taking it to absurdity, but within the word “any” you have literally anybody within the remit of the Secretary of State. It is important that we are clear that there is a hierarchy that the Secretary of State can lean on but that we are not just talking about anybody; these people have to be appropriately positioned and they have to have appropriate training and knowledge to fulfil the functions asked of them. I thank the Minister for that reply and I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendments 7 to 10 not moved.

Clause 3 agreed.

Clauses 4 and 5 agreed.

Clause 6: The Director of Border Revenue

Amendment 11

Moved by Baroness Hanham

11: Clause 6, page 5, line 3, leave out “must” and insert “may”

Baroness Hanham: We turn now to a very important post that has been brought into this part of government regulation: the Director of Border Revenue. This person is to be designated by the Secretary of State to exercise the functions of border revenue and to be able to carry

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out general customs functions as well. This position is effectively the top of the tree, after the Secretary of State. The director will have an enormous amount of power and influence and an enormous amount to do. Yet the Bill provides that the Secretary of State will designate this person. So the Secretary of State says to an official, or somebody he or she likes in the department, “You are going to be the Director of Border Revenue”. What other highly paid position of Government is chosen by the finger or the hand falling on the shoulder? For sure, that is what this is. It was made very clear at Second Reading when I asked who this person will be. The Minister said that the hand had of course already fallen and it was going to be the chief executive of the UK Border Agency. If it is intended that the Director of Border Revenue should always be the chief executive of the UK Border Agency, we should say so and we should not pretend that it is another official. It is not another official; the chief executive of the UK Border Agency will also be known as the Director of Border Revenue.

I find it absolutely inconceivable that a position such as this should not be open to competition and that it should not at least be put out to competition within the department. There will be no choice other than that of the Secretary of State. The Minister may say to me, “But of course it won’t happen like that. There will be a proper process and proper consultation. Someone will spend a huge sum of money on head-hunters and we will go all the way through the normal processes that cost everyone a lot of money but at least are transparent”.

The whole question of who is to be the Director of Border Revenue is only transparent at the moment because I asked about it at Second Reading; otherwise, at this stage of the Bill we would not know who it was going to be. However, we do. We have a very clear idea of the process but I think that the Minister needs to explain to us why that is the process for this post.

Presumably, the next chief executive of the UK Border Agency will not just have a hand fall on their shoulder when the current one leaves. That post, I hope, will also be a matter for open competition. Therefore, when subsequently—a very long time down the line, I am sure—the post of chief executive of the UK Border Agency is to be filled, the post will be advertised not only as the chief executive of the UK Border Agency but as the Director of Border Revenue.

I await the Minister’s reply with great interest because I find this an extraordinary way to deal with a very senior position in the organisation. I beg to move.

6 pm

Lord Avebury: I thought that it had been generally known prior to Second Reading that Lyn Homer was to be appointed to this post. However, there is some merit in the discussion that we are having now because, as I understand it, it will not always be the case that the person appointed as Director of Border Revenue will also be the head of the UKBA.

The noble Baroness put her finger on an important point when she said that a huge sum of money could have been spent on head-hunters. At least this has the merit of both posts being filled by the same person,

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thereby saving money for the taxpayer. However, it would be interesting to know from the Minister what the procedure is to be on future occasions. Does he envisage that the normal course of events will be for the same person to fill the post of Director of Border Revenue and head of the UKBA, or is this an exceptional and unique arrangement which is simply to start the process off but will never be repeated in the future?

Lord West of Spithead: We want to ensure that there is a clear, single and unified command structure, achieving the main objective of the Cabinet Office review to provide an integrated customs and immigration service at the border. That is the aim here. The role of Director of Border Revenue needs to be very closely integrated with that of the chief executive of the UK Border Agency to provide a single line of command in the agency’s management structure. Our intention is that that will always be one and the same person, even in the future. That is what we would want.

I had hoped that I had made it clear to the noble Baroness, Lady Hanham—although plainly I had not—that it was our intention that the current chief executive of the UK Border Agency should be designated as Director of Border Revenue. The chief executive will be accountable to the Home Secretary in relation to all non-revenue matters, but in respect of revenue matters she or he—at present it is she; as was mentioned, it is Lyn Homer—will act independently, subject, like HM Revenue and Customs, to the general oversight of Treasury Ministers. Therefore, to an extent, there will be a certain schizophrenic element to the role but there are other examples of that, and we believe that it is more important to have this single line of command.

Under this model, we felt that a Home Office official was the most appropriate person to be appointed as Director of Border Revenue, having an understanding of the department’s wider strategic objectives and the operational and managerial command of the UK’s border forces. Of course, if the chief executive’s post were to become vacant in future, it would be possible to fill it through open competition under Civil Service rules explicitly on the basis that the postholder, the chief executive, would also be the Director of Border Revenue. I hope that on that basis the noble Baroness will agree that her amendment is unnecessary and will feel able to withdraw it.

Baroness Hanham: I think that the amendment is wholly necessary. Perhaps I am alone in this Chamber in not having read that the Director of Border Revenue will also be the chief executive of the UK Border Agency. It does not say so anywhere but we have now established that through some questioning. Following on from that is the question of whether there are any conflicts in this dual position. The chief executive of the UK Border Agency would find him or herself in great difficulty in talking to the Director of Border Revenue because they would be one and the same person. I find the idea of two very senior positions metamorphosing into one extremely challenging. Presumably, whenever this position becomes vacant in future, it will be advertised, and it will be known that the Director of Border Revenue is to be the chief executive of the UK Border Agency.

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This is extremely revealing and I am very glad that I asked the question. As I said, I had not known before Second Reading that Lyn Homer had been designated as the director. I have no objection to that as she is a very fine chief executive, but it is helpful to know why that is so and what will happen in the future. I am grateful for the Minister’s reply and beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendments 12 to 15 not moved.

Clause 6 agreed.

Clause 7: Customs revenue functions of the Director

Amendment 16

Moved by Viscount Bridgeman

16: Clause 7, page 5, line 11, leave out “concurrently with the Commissioners”

Viscount Bridgeman: I shall speak also to Amendment 17. These amendments are designed to probe what customs and revenue jurisdiction it is intended will be transferred to the Secretary of State and why, and to consider how the jurisdictions of the Commissioners of Customs and Excise and the Secretary of State will interrelate. Does “concurrently” mean in tandem with or alongside? In other words, will there be a potential duplication of work? Is there is a risk of conflict with the commissioners and, if so, how will that be resolved? I beg to move.

Lord West of Spithead: Although the arrangements that we are putting in place allow flexibility, the border force will have primary operational responsibility for customs revenue functions at the frontier. Similar functions using the same powers will still be carried out by HM Revenue and Customs officials inland, however. For example, checks on goods and customs audits at business premises or warehouses, et cetera, will remain a matter for HM Revenue and Customs: the processing of customs freight declarations and collections of duties on freight, which is a centralised function, will also remain with that department, which will have all such functions. Therefore, we believe it absolutely vital that the Director of Border Revenue is able to exercise such functions concurrently with the commissioners for Revenue and Customs. While Amendment 16 would not, in itself, prevent this arrangement, it might lead to confusion about how those functions are exercised by the commissioners and the director respectively.

Amendment 17 would mean that the Director of Border Revenue could not collect customs or excise duties, or act to prevent the smuggling of dutiable goods. The functions of the commissioners on customs and excise duties are conferred concurrently on the director in the Bill to enable the border force to take day-to-day responsibility for all immigration and customs functions at the border, thus providing a fully integrated service. If Her Majesty’s Revenue and Customs remain responsible for customs and excise duty while the Director of Border Revenue were responsible for collecting other levies and duties at the border, it would not

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deliver the integrated service that we want to achieve, and it would certainly confuse the public. On that basis, I hope that the noble Viscount will agree that the amendment is unnecessary and inappropriate and that he will feel able to withdraw it.

Viscount Bridgeman: I am grateful to the Minister for that explanation. The internal organisation of UKBA is one thing that I hope will be more apparent at the end of the Committee stage. In the mean time, I beg to withdraw the amendment.

Amendment 16 withdrawn.

Amendments 17 and 18 not moved.

Clause 7 agreed.

Clause 8 agreed.

Clause 9: Delegation of Director’s functions

Amendment 19

Moved by Viscount Bridgeman

19: Clause 9, page 6, line 38, leave out “or any other enactment”

Viscount Bridgeman: This amendment would limit the powers of the Director of Border Revenue to delegate functions to those conferred under the Bill. It also probes which other functions it is intended to confer on the director. Again, we are wary of handing out powers that have yet to be defined or drafted, let alone presented to us, and would like to see an express limit on the delegation of the director’s functions. I would add that this amendment would leave out “or any other enactment”. The noble Lord, Lord Avebury, who is not in his place, raised this point. I should be grateful for a note on the relationship of the Carltona principle to any other enactment to see whether they are totally complementary. I beg to move.

Lord West of Spithead: I certainly will provide a note to explain that; it was explained to me only earlier today, as I was unaware of it before. This amendment would seriously impair the abilities of officials in the border force to perform their customs revenue functions. The Bill ensures that, by conferring them on the Director of Border Revenue, existing functions of the commissioners for revenue and customs may be delegated to others. Future enactments may, however, confer additional functions on the director and we believe it right that they should also be able to delegate those.

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