Previous Section Back to Table of Contents Lords Hansard Home Page



25 Feb 2009 : Column 260

Amendment 29

Moved by Lord West of Spithead

29: After Clause 21, insert the following new Clause—

“Application of the PACE orders

(1) Subject as follows, the PACE orders—

(a) apply to criminal investigations conducted by designated customs officials and relating to a general customs matter or customs revenue matter as they apply to relevant investigations conducted by officers of Revenue and Customs, and

(b) apply to persons detained by designated customs officials as they apply to persons detained by officers of Revenue and Customs.

(2) Each of the following is a PACE order for the purposes of this section—

(a) the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (S.I. 2007/3175);

(b) the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464).

(3) In the application of the PACE orders by virtue of this section—

(a) subject to the following provisions of this subsection, references in those orders to an officer of Revenue and Customs are to be read as references to a designated customs official;

(b) references in those orders to the Commissioners are to be read as references to—

(i) the Secretary of State in relation to general customs matters, or

(ii) the Director of Border Revenue in relation to customs revenue matters;

(c) references in those orders to Her Majesty’s Revenue and Customs or to Revenue and Customs are to be read as references to—

(i) the Secretary of State in so far as the Secretary of State has general customs functions,

(ii) the Director of Border Revenue, and

(iii) designated customs officials;

(d) references in those orders to an office of Revenue and Customs are to be read as references to an office of the UK Border Agency;

(e) references in those orders to a designated office of Revenue and Customs are to be read as references to a designated office of the UK Border Agency;

(f) references in those orders to a relevant indictable offence are to be read as references to an indictable offence that relates to a general customs matter or a customs revenue matter;

(g) references in those orders to a relevant investigation are to be read as references to a criminal investigation conducted by a designated customs official that relates to a general customs matter or a customs revenue matter;

(h) references in those orders to a person being in Revenue and Customs detention are to be read as references to a person being in UK Border Agency detention;

(i) references in those orders to an officer of Revenue and Customs of at least the grade of officer are to be read as references to a designated customs official of at least the grade of immigration officer or executive officer;

(j) references in those orders to an officer of Revenue and Customs of at least the grade of higher officer are to be read as references to a designated customs official of at least the grade of chief immigration officer or higher executive officer;



25 Feb 2009 : Column 261

(k) references in those orders to an officer of Revenue and Customs of at least the grade of senior officer are to be read as references to a designated customs official of at least the grade of immigration inspector or senior executive officer;

(l) any other references in those orders to an officer of Revenue and Customs occupying a specified post or grade are to be read as references to the Secretary of State.

(4) For the purposes of this section—

(a) a person is in UK Border Agency detention if—

(i) the person has been taken to an office of the UK Border Agency after being arrested for an offence, or

(ii) the person is arrested at an office of the UK Border Agency after attending voluntarily at the office or accompanying a designated customs official to it,

and is detained there or is detained elsewhere in the charge of a designated customs official, and

(b) “office of the UK Border Agency” means premises wholly or partly occupied by designated customs officials.

(5) This section does not apply to the following provisions of the PACE orders—

(a) in article 2(1) of the Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (S.I. 2007/3175), the definitions of “the Commissioners”, “office of Revenue and Customs”, “relevant indictable offence” and “relevant investigation”;

(b) article 2(2) of that order (Revenue and Customs detention);

(c) article 7 of that order (restriction on other powers to apply for production of documents);

(d) article 19 of that order (authorisation);

(e) in article 2(1) of the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007 (S.R. 2007/464), the definitions of “the Commissioners”, “office of Revenue and Customs”, “relevant indictable offence” and “relevant investigation”;

(f) article 2(2) of that order (Revenue and Customs detention);

(g) article 7 of that order (restriction on other powers to apply for production of documents);

(h) article 15 of that order (authorisation).

(6) A person may be transferred—

(a) between UK Border Agency detention and Revenue and Customs detention;

(b) between Revenue and Customs detention and UK Border Agency detention;

(c) between UK Border Agency detention and police detention;

(d) between police detention and UK Border Agency detention.

(7) The references to police detention in subsection (6)—

(a) in relation to England and Wales, are to be construed in accordance with the Police and Criminal Evidence Act 1984 (c. 60);

(b) in relation to Northern Ireland, are to be construed in accordance with the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).

(8) Expressions used in this section that are defined in a PACE order have the same meaning as in that PACE order.

(9) This section does not affect the generality of sections 1(4), 3(5), 7(5) and 11(4) (construction of statutory etc. references to the Commissioners for Her Majesty’s Revenue and Customs, officers of Revenue and Customs and Her Majesty’s Revenue and Customs).”



25 Feb 2009 : Column 262

Lord West of Spithead: I shall deal with government amendments 29 and 32 together as they are related. In bringing Revenue and Customs functions within the remit of the border force, officials of the UK Border Agency will be given the same or similar powers to those used at present by officers of Her Majesty’s Revenue and Customs. The Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 and the Police and Criminal Evidence (Application to Revenue and Customs) Order (Northern Ireland) 2007, which I shall refer to for these purposes as the Revenue and Customs PACE orders, provide for the application of important powers and safeguards relating to the investigating of offences are applied to HM Revenue and Customs. These include powers for the investigation of Revenue and Customs offences at the frontier and elsewhere and for the designation of custody suites and custody officers, as well as for the application of safeguards in relation to those persons who have been detained.

We need to ensure that in so far as they will in future be investigating and detaining people for the same offences, and exercising the same functions at the border as officers of HMRC do currently, the designated customs officials of the border force have the same powers and are required to provide the same safeguards. It is our intention, therefore, that the vast majority of the substantive provisions of the Revenue and Customs PACE orders should apply in future to criminal investigations in relation to customs matters conducted by designated customs officials of the border force, as well as to any persons detained by such officials.

Certain provisions in the Revenue and Customs PACE order are excluded. This is because they are unnecessary or they relate to investigative tax functions and will not be required by the UK Border Agency. For example, the powers relating to production orders in tax investigations are not applied to the UK Border Agency because it would not be appropriate to do so.

In summary, this clause effectively applies the bulk of the provisions of the Revenue and Customs PACE orders to designated customs officials in the UK Border Agency exercising equivalent functions. It will ensure seamless applications of PACE to those officers transferring from HMRC to the UK Border Agency, until a further bespoke PACE application order is made in relation to the border force customs and immigration functions under Clause 22.

As a consequence of the introduction of the new clause on the application of PACE that government Amendment 29 seeks to insert in Part 1, we have also tabled Amendment 32.

Amendment 32 inserts a new subsection into Clause 22. This new provision will enable an order made under Clause 22 to amend or repeal the new clause on the application of PACE, the detail of which I have just outlined. As I mentioned, Amendment 29 will enable the transfer of HMRC officers to the UKBA, while keeping all their existing powers, until a further bespoke PACE application order is made under Clause 22. We also intend to use the order-making power under Clause 22 to replace the Immigration (PACE Codes of Practice) Direction 2000 and the Immigration

25 Feb 2009 : Column 263

(PACE Codes of Practice No 2 and Amendment) Direction 2000 made under Section 145 of the Immigration and Asylum Act 1999. In doing so, we will also seek to bring together in one place the PACE powers and safeguards to be applied in relation to the border force customs and immigration functions.

Amendment 32 ensures that the order-making power in Clause 22 is sufficiently flexible to deliver that objective. I would ask the Committee to accept Amendments 29 and 32.

Baroness Hanham: It is not that we object to the extension of PACE to officers; it is that we are concerned that these officers should be in the position of police, which is effectively what they now are. PACE already applies to immigration officers, because they are given the power of arrest, and that is what will happen with these other officers. So there is a great extension in the number of those with the power of arrest and detention of people coming through the immigration and border system. If those powers are to be there, then PACE must apply, because PACE is the safeguard to ensure that people are properly dealt with and protected to some extent by a code of conduct and code of practice.

This brings us back to an earlier amendment. We should have police embedded within the border agency so that we do not have to give police powers to other officials regardless of the role they are operating in. It is a great and worrying extension of police powers to other people. I think that we are in danger of removing the distinction between criminality and immigration control. I am sure that the Minister will explain the Government’s rationale. However, this means that we are extending—under previous clauses, I think—to immigration officers and to customs and revenue officers the power to arrest people. If the Minister had not produced this amendment, there is no doubt that someone else would have done. It is clear that we have to discuss the whole issue of PACE and where it applies. We are very uncomfortable about the extension of these PACE powers. I remain very concerned about the reasons given for extending them.

Lord Avebury: We are grateful to the Minister for his letter about these amendments, but we note that only the PACE provisions specified in subsection (2) apply immediately on Royal Assent. We would like to know why the provisions of PACE identified in subsection (5) are expressly excluded from application to designated customs officials. PACE standards are to be applied to immigration officials only when they are acting as designated HMRC officers and not when they are performing any of their existing functions under the Immigration Acts. We will come on to that in the next group of amendments.

Meanwhile, we also note that the amendment to Clause 22 would allow the Secretary of State to amend or repeal by order the new clause under discussion. We would like more information about the Government’s thinking and how they expect to use this virtually unlimited power. Are they committed to maintaining the application of the PACE provisions to designated customs officials? If so, why is there a necessity for such a broad power as they are asking for in Amendment 32?



25 Feb 2009 : Column 264

7.15 pm

The Earl of Sandwich: The noble Baroness, Lady Hanham, has mentioned concerns. I should like to mention concerns about security organisations and subcontractors. On Second Reading, various examples were given of harm caused to individuals from escorts and all sorts of transport during detention. I realise that we are dealing specifically with ports, but I should like to hear confirmation from the Minister that this extension of powers under the PACE regulations, although welcome in itself, will cover these security firms and that adequate training is being given to anyone acting on behalf of revenue and customs officials.

Lord West of Spithead: I need to clarify that there is no extension: the officials affected by this amendment will be carrying out functions that are currently conducted by HMRC, and to which PACE already applies. Basically, this will enable them to do what they can already do but in the context of the border force. That is why the provision is being made. It enables them to fit in as part of the border force. It is not growth involving other people, as the HMRC can already do this. These HMRC officers are now becoming part of the border force and, in that context, they need these PACE powers. That is why this has been put in place.

The noble Lord, Lord Avebury, asked about subsections (2) and (5) but I do not know the answer, and I notice that the Box does not seem to have it either. Perhaps I can come back to him on that specific issue.

On contractors, I think that an amendment further downstream will address the issue. However, the intention is that the amendment will not give them those powers. Perhaps we can discuss it when we reach that amendment.

Amendment 29 agreed.

Clause 22: Investigations and detentions: England and Wales and Northern Ireland

Amendment 30

Moved by Lord Avebury

30: Clause 22, page 15, line 18, leave out “may” and insert “must”

Lord Avebury:I hope that the noble Earl, Lord Sandwich, will say a few words on this amendment, part of which is relevant to the considerations that he has already raised.

As we have said, we have no objection in principle to the steps being taken in the Bill towards what we have envisaged as a UK border force, and that has been our party’s policy for the past couple of years. Our concern is that immigration officers will be given revenue and customs functions but without the appropriate accountability and safeguards. The purpose of Amendment 30 is to change the power to apply the PACE codes to the acts of customs officials and immigration officers to a duty. The purpose of the second amendment, as I am sure the noble Earl, Lord Sandwich, will be pleased to hear, is to ensure that private contractors exercising functions in connection with investigations or detention will also be subject to the PACE codes.



25 Feb 2009 : Column 265

The Police and Criminal Evidence Act 1984, which came into effect after the civil unrest of the early 1980s and the recommendations of the Scarman report, protected both police officers and those being dealt with by the police, by introducing codes of practice regulating the use of police powers, notably in sensitive areas such as stop and search, arrest, detention and questioning. Immigration officers now exercise almost the same powers in relation to potentially vulnerable people and for their own protection as well as that of the person who is the target of these powers, the PACE codes of practice should apply to them. So we very much welcome the Government’s decision in Amendment 29 to apply the PACE orders specified from Royal Assent, though some of the gilt was taken off the gingerbread by the power to amend or repeal that new clause.

The PACE codes themselves can be amended from time to time, but if the Secretary of State is to be given absolute discretion to apply them only to the extent that she thinks proper to UKBA or HMRC officials exercising similar powers of search, detention, treatment and questioning of suspects or the recording of interviews, we can have no great confidence in her commitment to the principle. We should bear in mind the history of the matter: the Immigration and Asylum Act 1999 gave the Secretary of State power to apply full or modified versions of the PACE codes to immigration officers’ powers of arrest, questioning, search or taking a person’s fingerprints, entering or searching premises or seizing property, but in fact only two orders were ever made under that provision, the last in 2001. Ministers have repeatedly said, whenever immigration legislation has come before Parliament, that further orders were under review, but have done nothing as the exercise of police powers by immigration officers and private contractors has increased with every Act.

Immigration officers have numerous police and police-like powers, including the power to arrest with and without a warrant; to search and arrest without a warrant; to enter premises and make an arrest; to search premises; to search personnel records with and without a warrant; to search arrested persons and those in custody; to seize material; to detain; to search detained persons and retain evidence; and to fingerprint persons—and the use of force in the exercise of all those powers is expressly sanctioned. That extends to the private contractors, who may exercise several of those powers. While many of the powers relate to immigration-related offences, those who may be subjected to them include British citizens as well as foreign nationals, children as well as adults. Some of the powers have no specific relation to immigration-related offences, such as the power to detain someone at a port for up to three hours on suspicion that he may be of interest to the police and to retain evidence revealed from a search of that person.

During the passage of the earlier UK Borders Bill through both Houses, Ministers stressed the importance of much stronger oversight, transparency and accountability of what is now the UK Border Agency. That will not happen, however, if we have no certainty that officials exercising the even greater powers that

25 Feb 2009 : Column 266

they are now to be given are not subject to the standards expected of the police in exercising the same or similar powers.

At Second Reading the noble Lord, Lord Ramsbotham, drew attention to a dossier containing the details of 48 alleged assaults on asylum seekers by security guards, which he passed to the Home Secretary in July last year. That is still being investigated by Dame Nuala O’Loan. My noble friend Lord Thomas of Gresford also drew attention to the operation of secret and unlawful immigration policies revealed in the December 2008 judgment of the High Court in R v Abdi and others. On 18 February this year, the High Court ruled in yet another case, where a policy was not publicly disclosed and was relied upon unlawfully in circumstances where serious allegations of mistreatment were made. These policies relate to detention and removals respectively, so there is abundant evidence to demonstrate the necessity of clear and publicly available guidance and instructions to immigration officers, and to private contractors exercising immigration powers, that accord with the standards expected of police officers in exercising similar powers.

As the late Lord Williams of Mostyn recognised on behalf of the Government as long ago as 1999, the adoption of PACE codes of practice is necessary—and, 10 years later, is seriously overdue. If immigration officers and private contractors are not sufficiently trained or competent to be made publicly subject to PACE, they ought not to be exercising the powers that they already have, let alone those that they will be given under the Bill. I beg to move.

Baroness Hanham: I support the noble Lord’s amendment, which replicates many of the concerns that I raised under the previous one.

The Earl of Sandwich: I apologise to the noble Lord, Lord Avebury, for jumping the gun. This is precisely what I was aiming at, and he has expressed it much more lucidly. It is important that he read out those powers one by one, and his reference to Lord Williams of Mostyn is very relevant because it speaks of the exercise of officials’ duties in addition to the actual powers involved.

Lord Brooke of Sutton Mandeville: This is a de minimis point, but just as the price of liberty is eternal vigilance so the same applies to syntax and/or style. Amendments 30 and 31 need what I shall call “Amendment 30A”, a paving, consequential amendment that would omit “or” at the end of line 24.

Lord West of Spithead: The effect of Amendment 30 would be to place a duty on the Secretary of State to make an order applying provisions of the Police and Criminal Evidence Act 1984 and the equivalent instrument in Northern Ireland to investigations conducted by designated customs officials and immigration officers and to persons detained by those officials or officers.

As I mentioned in discussing Amendment 32, we will make an order under Clause 22 to replace the Immigration (PACE Codes of Practice) Direction 2000 and the Immigration (PACE Codes of Practice No. 2

25 Feb 2009 : Column 267

and Amendment) Direction 2000, made under Section 145 of the Immigration and Asylum Act 1999. In doing so, we will also seek to bring together in one place the PACE powers and safeguards to be applied in relation to the UK border force and its immigration functions. We believe that the approach in Clause 22 is the right one, mirroring as it does the construction of similar enabling provisions within PACE itself—for example, within Sections 114 and 114A—and that Amendment 30 is therefore unnecessary.


Next Section Back to Table of Contents Lords Hansard Home Page