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The Government are committed to securing appropriate oversight of all the UK Border Agency’s complaints, incidents and conduct matters relating to exercise of enforcement powers. However, it has always been intended that the territorial extent of the IPCC be limited to England and Wales. I hope the noble Lord will agree and feel able to withdraw his amendment.

Lord Hylton: It seems to me that the Minister has not covered the oversight of contractors who are escorting people being deported from this country to somewhere overseas.

Lord West of Spithead: It has always been intended that territorial extent should be limited to UK territory. Presumably the noble Lord is referring to aircraft travel or when the person has landed in another country. There are some difficulties in having the IPCC being responsible for that investigation. I am very happy to investigate whether that is the case; that is what I would have thought would be the problem.

Lord Avebury: I am most grateful to the Minister for the information. As I understand it, if the complaint relates to a criminal matter in the juxtaposed control, that falls under the responsibility of the criminal investigative authorities in France or Belgium as the case may be. If it falls short of that, the Minister said he was considering independent oversight of matters that were complained about that did not constitute criminal offences. So that is a step in the right direction, but as the noble Lord, Lord Hylton, said, it does not go far enough, because we are talking not only about juxtaposed controls but about any activity by private contractors that is exercised in pursuance of their immigration powers outside the boundaries of the United Kingdom.

The particular case that the noble Lord, Lord Hylton, raised—I have raised it a couple of times—is where escorts are used to take somebody on an aircraft from the United Kingdom to his country of origin. I have already mentioned the assaults that are alleged to have taken place on those aircraft. This is a bit of a black hole because the Minister did not give any undertaking that we would consider an independent complaints mechanism relating to those cases.

If I am not pressing my luck too far, may I ask the Minister whether the undertaking that he has already given that the Government are looking at an independent complaints mechanism in relation to the juxtaposed controls, whether that could be extended to cover other activities by private contractors overseas, or en route overseas, that are exercised on behalf of the Immigration Service? That would apply to the escorts accompanying people being deported from the United Kingdom and it would apply to airline operatives abroad who have been there for a long time—airline liaison officers—or any other official who is located outside the boundaries of the United Kingdom and who is exercising functions on behalf of the Immigration Service. It would be an enormous step forward if the

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noble Lord could give us the assurance that the investigation of independent complaints mechanisms relating to Sangatte and other juxtaposed controls could be extended to cover these other areas.

Lord West of Spithead: I gather from my Box that the IPCC jurisdiction does not cover detention in the escorting of prisoners on probation outward from the UK. An individual being escorted for deportation—the noble Lord mentions alleged cases that I cannot talk about—is really for the Prisons and Probation Ombudsman. There probably is something here that needs a little more looking into. My Box tells me that this is a Prisons and Probation Ombudsman issue but I will look into it a little more because it looks like something could fall between the cracks and I want to look at it.

9.15 pm

Lord Avebury: I would be very happy about that. If the noble Lord takes a look at whether the Prisons and Probation Ombudsman could entertain the complaints that are arising not from the juxtaposed controls but take place outside the United Kingdom, that would be the sort of step forward that we would very much like to see. With that, I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendment 38

Moved by Lord West of Spithead

38: Clause 28, page 20, line 37, after “functions)” insert “—

(a) after subsection (1)(b) insert—

“(c) the provision of services pursuant to arrangements relating to the discharge of a function within paragraph (a) or (b).”, and”

Amendment 38 agreed.

Clause 28, as amended, agreed.

Amendment 39

Moved by Baroness Miller of Chilthorne Domer

39: After Clause 28, insert the following new Clause—

“Complaints and misconduct: Northern Ireland

(1) The Police (Northern Ireland) Act 1998 (c. 32) is amended as follows.

(2) After section 60 insert—

“60ZZA Immigration and asylum enforcement functions: complaints and misconduct

(1) The Secretary of State may make regulations conferring functions on the Ombudsman in relation to—

(a) the exercise by immigration officers of specified enforcement functions;

(b) the exercise by officials of the Secretary of State of specified enforcement functions relating to immigration or asylum;

(c) the provision of services pursuant to arrangements relating to the discharge of a function within paragraph (a) or (b).

(2) In subsection (1) the reference to enforcement functions includes, in particular, reference to—

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(a) powers of entry;

(b) powers to search persons or property;

(c) powers to seize or detain property;

(d) powers to arrest persons;

(e) powers to detain persons;

(f) powers to examine persons or otherwise to obtain information (including powers to take fingerprints or to acquire other personal data); and

(g) powers in connection with the removal of person from the United Kingdom.

(3) The Secretary of State may make regulations conferring functions on the Ombudsman in relation to—

(a) the exercise by designated customs officials, and officials of the Secretary of State, of customs functions within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009;

(b) the exercise by designated Director of Border Revenue, and any person exercising functions of the Director, of customs revenue functions within the meaning of that part of that Act, and

(c) the provision of services pursuant to arrangements relating to the discharge of a function within paragraph (a) or (b).

(4) Regulations under subsection (1) may not confer functions on the Ombudsman in relation to the exercise by any person of a function conferred on him by or under Part 8 of the Immigration and Asylum Act 1999 (c. 33).

(5) Regulations under subsection (1)—

(a) may apply (with or without modification) or make similar to any provision of or made under Part VII of this Act;

(b) may make provision for payment by the Secretary of State to or in respect of the Ombudsman.”.”

Baroness Miller of Chilthorne Domer: This morning, the Northern Ireland Human Rights Commissioners were here in the Palace of Westminster to present to interested Members of Parliament and Peers the commission’s bill of rights for Northern Ireland. This bill of rights has a history which goes back to the Belfast agreement—the Good Friday agreement, as it is better known—and to Section 69(7) of the Northern Ireland Act 1998. The commissioners explained that the bill of rights is particularly important to them because, in the aftermath of the Troubles which they experienced for so long, they feel that rights, equality of rights and proper treatment are crucial, especially in an atmosphere where distrust quickly arises in the light of difficult issues. They have done some terrific work on the bill, which we should soon be debating in this place, and I hope the Government will give it a fair wind. Meanwhile, however, they have no bill of rights and it is up to us to ensure that any legislation we pass is as fair to Northern Ireland as it is to the rest of the United Kingdom. That brings me to the amendment.

We have concerns that Northern Ireland is being treated somewhat differently. The Northern Ireland Human Rights Commission has consistently raised concerns about powers which are properly the role of police officers being delegated to UKBA officers. The commission has concerns about the increasing use and introduction into Northern Ireland of a civilian force that is engaging in police work but which is currently without the same standards, training or accountability as PSNI officers.

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As the Committee will be aware, there is a particular policing context within Northern Ireland, including contexts for human rights compliance. As I said, trust takes a long time to build up and is easily lost. The role of the police ombudsman in relation to immigration officers is the subject of ongoing reviews. As far as we are aware those reviews have not yet been concluded, and I would be grateful if the Minister could shed any light on the progress.

In 2007, the Northern Ireland Human Rights Commission, in its response to the consultation on the IPCC oversight of Border and Immigration Agency incidents and complaints, raised concerns that the mechanism for individual complaints to be heard and dealt with, that of the IPCC, did not extend to Northern Ireland. It said:

“The Commission notes that the oversight of the IPCC does not extend to Northern Ireland and that according to the consultation paper ‘any cross border complaints will be dealt with under agreements with the relevant authorities in Scotland and Northern Ireland’ (‘cross border’ in this context meaning as between the UK jurisdictions)”—

not, as we usually think of in Ireland, between the north and the south.

“The cross border activity of BIA is in fact significant, with individuals routinely being transported from Northern Ireland to Dungavel Removal Centre in Scotland and then on to removal centres in England. The need for agreements with the relevant agency in Northern Ireland therefore is a very real and pressing one”.

It is not just a hypothetical issue.

The policing divisions of the Northern Ireland Office were also consulting in 2007 on the recommendations made by the police ombudsman of Northern Ireland. That paper states:

“The Police Ombudsman has been asked to take responsibility for the investigation of serious criminal complaints against the staff of the Immigration Service and Her Majesty’s Revenue and Customs”.

The paper goes on to explain that negotiations were under way to identify the legislative changes necessary to enable the Police Ombudsman to carry out that role. Will the Minister tell the House of progress made in those negotiations?

There seems to be a discrepancy between what is being proposed for the police ombudsman and what has been agreed for the IPCC. The ombudsman’s oversight seems to be restricted to “serious criminal complaints”, implying that only complaints alleging serious crimes committed by immigrations could fall to be investigated by the police ombudsman. Given what the Government have said about ad hoc immigration checks being carried out on the land border, this could raise serious concerns. As there are no proposals in the Bill regarding the oversight of immigration officers in Northern Ireland, we are deeply concerned that there could be a significant period during which protections were afforded to individuals in England and Wales but not in Northern Ireland. I am sure the Minister will agree that that is not a satisfactory situation, and it could potentially engage Article 14 of the ECHR prohibiting discrimination in the enjoyment of Convention rights. I beg to move.

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Lord Brooke of Sutton Mandeville: I thank the noble Baroness for having introduced the subject of Northern Ireland somewhat earlier than Clauses 46 and 47 in Part 3, to which we will come in the fullness of time. Since she has done so and I cannot be certain that I shall be standing in the Chamber when we reach those amendments, I will ask the Minister one question pertaining to the border between Northern Ireland and the Republic, which has been the subject of two exchanges for which I have been present over the past year.

In the first of them, I cannot recall whether the Minister was sitting next to a colleague who was making a Statement or whether he was actually answering questions himself, but the noble Lord, Lord Kilclooney, and I were engaged in asking, because of the possibility of people who were hostile to this realm entering the United Kingdom by the back door across the border, whether conversations were going on with the Republic of Ireland about strengthening that border. The answer that we received on that occasion was, yes, there were such conversations going on. I recall, in a much more recent exchange, the Minister saying that there were not now conversations going on, which may have been out of context. If he were able to clarify exactly the status of the relationship with the Government in the Republic on that subject, so much the better.

Lord West of Spithead: I shall answer the question of the noble Lord, Lord Brooke, first because it is a short one. The answer is that we are having ongoing discussions with the Irish about the border, intelligence sharing, risk and things like that. We have been deeply involved in that, not least because of the CTA work. That is continuing.

On the amendment tabled by the noble Baroness, Lady Miller, the Government are committed to ensuring that consistent and independent oversight is in place throughout the United Kingdom. As such, we fully agree that oversight in Northern Ireland should be provided by the Police Ombudsman for Northern Ireland, in line with the oversight provided in England and Wales by the Independent Police Complaints Commission. Although the Government have invited the Police Ombudsman for Northern Ireland to take on this oversight role, I am afraid that discussions with the ombudsman regarding his suggested role are still in the early stages.

Officials have been working with the Northern Ireland Office and it is intended to take this matter forward now in the immigration simplification Bill that is due to be published at the end of this Session. It has been decided not to introduce the changes in this Bill because we want to have those discussions completed and want to build on the initial work and allow enough time for scrutiny and discussion to ensure that we get it right. Until such oversight by the Police Ombudsman for Northern Ireland is introduced, where a complaint involves criminality this will continue to be investigated by the police, whereas for complaints regarding staff misconduct it will be for the border force’s Professional Standards Unit to investigate.

We are proposing that, through the immigration simplification Bill, the police ombudsman would have oversight of serious complaints, incidents and conduct

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matters in relation to the exercise of specified enforcement functions by all border force staff and contractors—namely, immigration officers, officials of the Secretary of State, customs officials, contractors and the Director of Border Revenue.

While oversight of complaints, incidents and misconduct matters in Northern Ireland is of equal importance to the rest of the UK, arrangements to secure sufficient oversight have been initiated more recently than those with the IPCC. When the Government first approached the IPCC in order to secure oversight in England and Wales, activity in Northern Ireland was at a very low level, with officers from England carrying out ad hoc enforcement operations in this area. However, activity has since increased and there is a proposal for a permanent office to be opened in Belfast. On this basis, discussions are progressing with the Police Ombudsman for Northern Ireland to ensure that adequate oversight is in place.

It is important to note that, although activity has increased in Northern Ireland, it is still relatively low level. For example, I think there are about 18 officers involved in enforcement work there at the moment. I hope that the noble Baroness feels that answers her question enough to be able to withdraw her amendment.

Baroness Miller of Chilthorne Domer: I thank the Minister for that reply, which, in a nutshell, was that progress is being made slowly, which is good. At least some progress is being made.

I am sure that we all hope that we will get to the simplification Bill. We wish we had that before us rather than this Bill. It is worrying that we have to wait until that to resolve this issue.

Before I withdraw the amendment, would the Minister comment on the IPCC in Scotland? I realise that that is not part of the amendment and understand if he will want to write to me on that. He has studiously mentioned England and Wales—although I did explain, in speaking to my amendment, that many of the removals were to Scotland. However, I realise that that was not part of my amendment so if he would like to write, that would be quite satisfactory.

Lord West of Spithead: If I may, I will write to the noble Baroness about that. I find that I get in terrible trouble when I try to speak off the cuff about Scotland.

Baroness Miller of Chilthorne Domer: I would be very grateful if the Minister would do that. In the mean time, I thank him for his helpful reply on the situation in Northern Ireland and beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Clause 29 agreed.

Clauses 30 to 32 agreed.

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Clause 33: Powers to modify enactments

Amendment 40

Moved by Baroness Hanham

40: Clause 33, page 24, line 28, at end insert—

“( ) Any order made under this section must be approved by both Houses of Parliament.”

Baroness Hanham: This small amendment would ensure that there is proper scrutiny of the actions of the Secretary of State. The provisions at page 24, line 28, enable her to make orders that are “incidental, supplementary or consequential”; this also applies to future Acts of Parliament. If any modifications are to be made, we consider that these should be made through an affirmative order.

Baroness Miller of Chilthorne Domer: We agree with those remarks. It is a point that both Opposition Benches make frequently about almost all legislation containing so much secondary legislation.

Lord West of Spithead: The Government agree that the order-making power under Clause 33 should be subject to the affirmative resolution procedure, given that an order under Clause 33 may amend primary legislation. Clause 35(4)(e) provides for that. Accordingly, no order made under Clause 33 may be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. I hope that the noble Baroness will agree that her amendment is unnecessary and feel able to withdraw it.

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

Amendment 40 withdrawn.

Clause 33 agreed.

Clause 34: Power to make supplementary etc. provision

Amendment 41

Moved by Lord West of Spithead

41: Clause 34, page 24, line 40, leave out subsections (4) and (5)

Lord West of Spithead: The government amendments in this group make changes to Clauses 34 and 35 of Part 1. The changes are required as subsections (4) and (5) of Clause 34, which made certain provision in relation to Scotland, are not necessary. On analysis, it has been agreed that the changes that it was envisaged would be made under these clauses would be for reserved purposes and, accordingly, for United Kingdom Ministers. It follows that, if Clause 34(5) is to be deleted from the Bill, then Clause 35(7), which made provision in respect of an order made by the Scottish Ministers, should be removed as well.

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Further consequential changes to Clause 35 are also made to reflect the fact that only the Secretary of State will have an order-making power under Clause 34. The Government and the Scottish Government have agreed that these changes should be made, and I hope that this Committee will now approve these amendments. Scottish Ministers are aware of the proposed changes and welcome them.

Amendment 41 agreed.

Clause 34, as amended, agreed.

Clause 35: Subordinate legislation

Amendments 42 to 44

Moved by Lord West of Spithead

42: Clause 35, page 25, line 24, leave out “made by the Secretary of State”

43: Clause 35, page 25, line 30, leave out “made by the Secretary of State”

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