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8.45 pm

Lord West of Spithead: The short-term holding facilities are UKBA accommodation that we currently use for the short-term detention of a person detained under the immigration Acts, so we are saying that those can now be utilised by all people in the border agency. We would all approve of the fact that the PACE codes relate to it. The officer in charge of the short-term facilities, as the case is today and has been for the past two or three years, will be the detainee custody officer.

On jumping from short-term to long-term, this is only for the short-term and everyone has to go through due process thereafter. They do not shift from the short-term to the long-term; I will make absolutely certain of that. If that point is wrong, I will get back to the Committee on it, but that is as I understand it.

May I get back to the noble Lord, Lord Avebury, in writing about a European directive on children, as that is quite a complex issue? The noble Baroness, Lady Miller, asked whether this provision applies to holding facilities outside the UK, such as in Sangatte. Clause 53 covers the extent of the Bill: it provides that Clauses 22 and 23 apply only in England, Wales, Scotland and Northern Ireland. I hope that that answers that question.

Baroness Hanham: May I puzzle a bit more on this? If these holding centres are already there, I am not quite sure whether the amendment to the Immigration and Asylum Act is that these powers should be extended to the new customs officials. Is that the point? Secondly, short-term holding facilities are, presumably, limited to three hours and people are then passed from the hands of the immigration officers or the customs revenue officers to the police, for consideration on whether they should be charged. Under PACE or the detention rules, officers can hold people only for three hours before the police are involved. Is it then intended that, if someone is held in those short-term facilities, the police become involved and, if they are held for longer than three hours, they are then held by the police?

Lord West of Spithead: I am afraid that I cannot give an exact answer to the noble Baroness. I know that the reasoning behind the three-hour period was to enable people to be held until the police arrived, so

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that a proper charge could be made. I am a little confused myself over this short-term facility, as I understood it to be something that the UKBA uses as accommodation for short-term detention of a person detained under the immigration legislation. I am unsure exactly how they get to that status, so if I may I will get back to the noble Baroness on that specific point.

Lord Avebury: When the Minister responds to us, perhaps he could consider the case that I mentioned where illegal entrants may be detained by the police for a short period while they are awaiting transfer to the custody of an immigration officer. I remember one case where a woman who had nowhere to go was found wandering on the road. She was taken into custody by the police, who discovered that she was an illegal entrant. Subsequently, they handed her over to the Immigration Service. There are therefore cases where the police are forced to hold persons who are subject to immigration control pending the arrival of an immigration officer to take them to some more permanent location. It is in those cases where the police cell acts, in the ordinary meaning of the English language, as a short-term holding facility, although it may not be defined as such under the Immigration and Asylum Act. I was trying to satisfy myself that the same provisions that would apply to a short-term holding facility would apply to the police under those circumstances.

Lord West of Spithead: That is a very good question, and I will try to resolve exactly what would be the status. On that basis, I would be grateful if the amendment were accepted.

Amendment 34 agreed.

Baroness Hanham: I am so sorry, but may I intervene? I do not know how we can accept an amendment on which the noble Lord will come back to us for us to decide whether it is acceptable.

The Deputy Chairman of Committees (Lord Faulkner of Worcester): The Minister moved the amendment and I had to put the Question to the Committee.

Clause 24 agreed.

Clause 25 : Facilities and services

Amendment 35

Moved by Baroness Hanham

35: Clause 25, page 17, line 41, after “make” insert “all existing”

Baroness Hanham: The amendment is intended to probe what facilities and services will be made available to any person who is empowered to exercise immigration, asylum, nationality or customs functions. The real question is: are the existing facilities adequate? Many small ports and airports may well not have adequate facilities to adapt to housing facilities with multiple functions. Will there be an impact on running costs? Will facilities at the smallest entry points be reinforced? My party has long said, and the shadow Home Secretary,

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Chris Grayling, said shortly after 9/11, that the weak link in our border defences is at those small ports. Will the use of existing facilities be enough to allow the Government to make good their commitment, of which the Bill apparently forms a vital part, fully to protect our borders? I beg to move.

Lord West of Spithead: The noble Baroness proposed in Amendment 1 a new clause that would have created a UK border police force separate from the agency. That amendment has been resisted. The effect of this amendment to Clause 26 would be that the independent chief inspector would have only an oversight role in respect of those immigration, asylum and nationality functions exercised by the Border and Immigration Agency. The intention underpinning Clause 26, however, is that the chief inspector should oversee the full range of functions to be exercised by the UK Border Agency, including those customs functions for which the agency will have primary responsibility at the border. The UK Border Agency was established in shadow form in April 2008 and, as a result, the Border and Immigration Agency no longer exists. That being so, the independent external scrutiny provided by the chief inspector needs to cover all the functions of the UK Border Agency.

As regards the issue of full protection of all the minor ports, as I said earlier, there is no doubt that the new structure is enabling us to have much greater coverage. In that sense, therefore, we are much more secure. We do not, however, have full cover of all our minor ports. A lot of this is intelligence-based and making maximum utility of what is a far more flexible force because of the measures we have in this Bill. I hope on that basis the noble Baroness will agree to withdraw her amendment.

Baroness Hanham: I thank the noble Lord for his reply. The first part did not relate to the amendment. The amendment is seeking to make sure that the facilities and services which have been available for Her Majesty’s Revenue and Customs will now be made available to the new agency and that those facilities will not be withheld. I hope the answer to this will be yes and I will therefore withdraw the amendment.

Amendment 35 withdrawn.

Clause 25 agreed.

Clause 26 : Inspections by the Chief Inspector of the UK Border Agency

Amendment 36

Moved by Baroness Hanham

36: Clause 26, page 18, line 5, leave out subsection (1)

Baroness Hanham: We now turn to the inspectorate—the Chief Inspector of the UK Border Agency. I had been going to ask why we had both the UK Border Agency Chief Inspector and the Inspector of Constabulary involved in both of these. I think I am right in saying that under the Customs and Revenue legislation of 2007 those are both involved anyway. I

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assume, therefore, that this is a direct lift from the Act and if that is not correct perhaps someone can let me know.

We need to know what additional resources will be made available to the Chief Inspector of the UK Border Agency before the jurisdiction is extended under these subsections. Can the Minister tell us, given the wide jurisdiction currently employed by the chief inspector, which has replaced several previous inspectorates, and the evident impairment on the inspector’s capacity to provide the oversight intended by Parliament when passing UK Borders Act, if he is now being required to satisfy an extended jurisdiction without commensurate additional resources? I beg to move.

Lord West of Spithead: In a quick answer on the first point raised by the noble Baroness, it is a direct lift so that is covered. The effect of this amendment to Clause 26 would be that the independent chief inspector would only have an oversight role in respect of those immigration, asylum and nationality functions which were exercised by the Border and Immigration Agency. The intention underpinning Clause 26, however, is that the chief inspector should have oversight of the full range of functions to be exercised by the agency, including customs functions for which the agency will have the prime responsibility at the border.

The UK Border Agency was established in shadow form in April 2008 and as a result the Border and Immigration Agency no longer exists. That being so, the independent external scrutiny provided by the chief inspector needs to cover all the functions of the UK Border Agency. I hope that covers the noble Baroness’s points and that she will agree to withdraw the amendment.

Baroness Hanham: I asked the Minister specifically about resources—whether extra resources will be made available, presumably both in financial and personnel terms.

Lord West of Spithead: So far as I am aware, the extra resources to enable him to carry out that function have been made available. If I am wrong, I will get back in writing.

Baroness Hanham: I thank the Minister for his reply. I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Debate on whether Clause 26 should stand part of the Bill.

Lord Brooke of Sutton Mandeville: Going back to the matters we were discussing earlier today, in Clause 26(2), at new subsection (1A)(a), we have,

and in new paragraph (c) we have the Secretary of State,



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Are we to take it that designated customs officials and officials of the Secretary of State exercising “customs functions” are now the balancing words for general customs matters? Unless that is so, I am puzzled as to why there are quite separate duties for the chief inspector when surveying the efficiency of people in two separate categories.

9 pm

Lord West of Spithead: I am not quite clear on the question. All I can say is that the chief inspector will cover the entire customs area for the border force as well as the previous immigration aspects. He will cover them all. Does that answer the noble Lord’s question?

Lord Brooke of Sutton Mandeville: What I am really asking is this. Earlier today we had a long discussion about tax revenue customs responsibilities and general customs responsibilities. What I am interested in is whether the groups in subsection (2), new subsection (1A)(a),

are in the first category or the second category.

Lord West of Spithead: I think that the answer is that it is a generic term for general customs functions and revenue customs functions, as defined in Clause 14.

Lord Brooke of Sutton Mandeville: I have no problem with the general customs functions. What I am interested in is what is being alluded to in new subsection (1A). It is only because of the discussion we had earlier and I am not seeking to reopen the issue.

Lord West of Spithead: It is probably best if I send the noble Lord an explanatory note to make sure that we are absolutely clear on the point.

Clause 26 agreed.

Clause 27 agreed.

Clause 28 : Complaints and misconduct

Amendment 37

Moved by Lord Avebury

37: Clause 28, page 20, line 34, at end insert—

“( ) Section 41 of the Police and Justice Act 2006 (c. 48) (immigration and asylum enforcement function: complaints and misconduct) is amended as follows.

( ) In subsection (1)(b) after “asylum” insert “whether in the UK or overseas;

(c) the provision of services by another person pursuant to arrangements which are made by the Secretary of State and relating to the discharge of a function within paragraphs (a) and (b).””

Lord Avebury: The amendment would allow the IPCC to entertain complaints about acts of HMRC and UKBA officials and their private contractors both within and outside the UK. Together, the two amendments would also allow us an opportunity to understand the respective jurisdictions of the IPCC and the Prison and Probation Ombudsman.

Section 41 of the Police and Justice Act 2006 empowers the Home Secretary to confer jurisdiction upon the IPCC to investigate complaints of misconduct against

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immigration officers, and the purpose of our amendment is to ensure that complaints can also be made to the IPCC about the conduct not only of customs and immigration officials, but also of their private contractors. We are somewhat pleased to note the Government’s response to our amendment with their Amendment 38, but disappointed that they have confined their amendment to the United Kingdom.

The Cabinet Office report published in November 2007, Security in a Global Hub, which has already been mentioned several times, remarks that:

“The drive to push as much border control activity as possible overseas has been a key theme in the development of border management over the past decade”.

This objective has meant that immigration powers are exercised increasingly by UKBA officials and private contractors overseas, including at the “juxtaposed controls” where UK officials and private contractors exercise immigration powers at EEA ports with the agreement of the Governments of France and Belgium. As the report says, the use of these powers overseas has significantly expanded since the Home Secretary was given the power in January 2003 to exercise immigration control at European Economic Area ports. However, officers were using these powers overseas before then, such as at Prague airport in 2001.

Although airline liaison officers overseas have the right to stop people boarding flights, it is really at the juxtaposed controls that our wording is to be preferred to that of the Government because at those locations the powers of search, detention, fingerprinting and so on may be exercised by both immigration officers and private contractors. The private contractors may carry out other immigration functions overseas, as I have already mentioned, such as escorting people who are being removed from the UK.

The dossier of allegations in the document Outsourcing Abuse which is currently, as I mentioned earlier, subject to investigation by Dame Nuala O’Loan, includes assaults by private contractor escorts outside the UK. As I mentioned, 3 per cent of the allegations recorded were assaults on aircraft after take-off from the UK, and one can assume that assaults at that point would be less likely to be recorded because of the practical difficulties facing someone who has been removed.

The report states:

“The authorities appear reluctant to investigate reported assaults which often happen behind closed doors, with no witnesses”.

We have already noted in the discussion on Clause 22 the Government’s stated commitment to strong oversight, transparency and accountability of the UKBA. So the absence of jurisdiction for the IPCC to investigate complaints of misconduct by immigration officers and their private contractors exercising immigration functions overseas is a significant omission, only partially repaired by the government amendment.

So, while we are grateful to the Government for having gone some way towards our proposals, we are more concerned than ever to ensure that oversight of what happens outside our borders is placed on the same footing as it is within the UK. The scope for abuse is almost inevitably greater when the chances of detection are lessened, and vulnerable individuals deserve and need the protection that our amendment will afford. I beg to move.



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Lord West of Spithead: Clause 28 extends the regulation-making powers of the Secretary of State in Section 41 of the Police and Justice Act 2006 to enable her to confer functions on the Independent Police Complaints Commission in relation to serious complaints, incidents and conduct of matters in respect of the exercise of functions of the border force under Part 1 of the Bill. I am grateful to the noble Lord for his amendment and for bringing forward scrutiny to this area of the Bill.

The Government have also tabled an amendment to Clause 28 and I should like to deal with this first before turning to the amendment proposed by the noble Lord. Clause 28 as introduced would enable the Secretary of State to make regulations allowing the Independent Police Complaints Commission to oversee serious complaints, incidents and conduct matters relating to the provision of contractual services in relation to the discharge of customs functions in England or on behalf of the UK Border Agency. The Government, however, wish to give the IPCC the same oversight role in respect of the provision of contractual services in relation to the discharge of those immigration and asylum enforced functions specified in Section 41(2) of the Police and Justice Act 2006, which the UK Border Agency exercises in England and Wales. It is for this reason that the Government are bringing forward this amendment to Clause 28. The Government feel that the amendment would strengthen the independent oversight arrangements for these functions.

In his Amendment 37, the noble Lord has identified that Clause 28 only secures oversight of contractors exercising customers’ functions. As I have explained, the Government will move an amendment to Clause 28 to ensure regulations can secure oversight over contractors exercising both customs functions and functions in relation to immigration and asylum matters. We are therefore agreed on the underlying purpose in relation to the need to cover contractors, but we prefer our slightly simpler amendment on that point.

The amendment proposed by the noble Lord would also extend the oversight of the IPCC to oversee the exercise of specified enforcement functions by officials of the Secretary of State in the UK and overseas. The Government do not believe that the amendment is necessary as officials working at our diplomatic posts overseas do not exercise enforcement powers. At our juxtaposed controls in France and Belgium, UK Border Agency officials are exempt from prosecution under French or Belgian law for acts committed in the UK control zone in the course of their duties. Under the terms of the treaties in place for juxtaposed controls, any complaints are investigated by the authorities of the host state and all evidence gathered is handed over to the relevant authorities in the UK for consideration under UK law.

The Government are considering whether an independent oversight system can be put in place for matters arising at the juxtaposed controls that do not warrant criminal investigation but do constitute serious misconduct. Currently such matters would be investigated by the agency’s professional standards unit but are not subject to independent oversight. All criminal matters that do not relate to an official function in the UK

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control zone are a matter for the French and Belgian authorities and will be processed in accordance with their domestic legislation.


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