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However, I was heartened to read that misuse of these customs powers for checking the immigration status of a traveller would be unlawful, but who will be
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I must comment on consultation. Since I began on this lonely road a few days ago, I have had a number of e-mails, notably from the Isle of Man. I am advised that proper consultation on these proposed measures has not taken place. Indeed, in appendix 1 of his letter, the Minister states quite clearly:
"Consultation was not deemed necessary ... as the measures are to clarify and support current operational practice and will not introduce any new requirements to carry passports where none have previously been required".
I think residents of the Isle of Man might find that explanation a bit elliptical. I am reminded that while the Isle of Man is in a customs union with the UK, that might not always be the case. The UK has just unilaterally amended the so-called common purse agreement with the Isle of Man, which will ensure that it will lose a significant proportion of its existing VAT revenue, so there is justification for concern about this Government's mission creep.
Let me clear on this matter: as there are no plans for actual fixed identity controls, will there be ad hoc identity checks on people from the Isle of Man? If so, what happens if the person stopped does not have a requisite document? The Minister's assertion in Committee that some sort of photo ID is required and that he could not think of any exceptions is wrong. Not all Manx residents have passports, and there may well be very good reasons for people to travel from there at short notice for, say, urgent medical treatment. Does this not create a default position whereby the only way anybody can prove they have a right to be in the UK is on production of a passport or some other identifying document not presently needed for travel purposes?
Finally, I reiterate the crux of my concerns that vesting customs and immigration powers in one individual will obviously mean that a document check for customs purposes will also be a document check for immigration purposes. How else can it be? The UKBA officer's responsibilities are deliberately interchangeable, and it is disingenuous to say that these powers are to be used only for customs purposes. I urge the Minister to wait until there has been proper consultation in the Isle of Man and Northern Ireland, particularly so that people can fully understand the implications of this proposal.
Lord Cope of Berkeley: My Lords, I, like the noble Baroness, Lady Harris, was concerned about this clause in Committee and elsewhere, as the Minister may recall, but I have been more reassured by his letter and by my contact with the Isle of Man since then that these are only customs powers and will not be used for immigration purposes. However, I am still not really clear about the reason for adopting the clause if it is not for immigration purposes. Nor am I clear quite how it will work.
As we said before, under the clause, customs officers can require the production of a passport or similar document. On the other hand, it does not seem to be an offence not to produce them. If you do not have them, you cannot anyway. I also understand that there has been no requirement to show identity of this kind on sea ferries to the Isle of Man, although there has been, for quite other reasons, on the air links. Without this being an offence, the clause is pretty useless. The officer may have the power to "require" identity, as the Bill says, but if no one has a duty to obey that requirement and there is no penalty for not obeying it, I am not quite sure how powerful it is. However, I am, as I say, reassured that the immigration provisions of the common travel area will not be affected, and so, I understand, are the Isle of Man Government.
Lord Lester of Herne Hill: My Lords, I have a question to ask the Minister before those on the Benches beside me reply. I travel back and forth to my holiday home in the Republic of Ireland all the time, and have done so for 36 years, and the Irish authorities, customs and immigration have never asked me for a passport. I take it that there has been no change in reciprocity in the common travel area between us and the Republic. Other noble Lords with the same kind of interests as mine have raised this in the past.
Baroness Neville-Jones: My Lords, the Minister sent your Lordships' House a helpful letter on the subject, which we, like my noble friend, found reassuring. It explained how the Government intend to use the power, and noted various safeguards. In the light of that very letter, however, I do not see how the Government would have difficulty in accepting an explicit safeguard in the Bill that accords with the clear intention of the letter. They ought to be able to accept it easily. It would give the reassurance that is needed and which would allay the doubt that still pertains more generally.
Lord Brett: I thank noble Lords who have participated in this short debate, which has persuaded me perhaps that shorter letters are better than long letters because they do not leave as much opportunity for ambiguity. As we set out in the letter dated 28 October and as we said in Committee, there are already significant statutory safeguards built into this clause. They will be inserted into the Customs and Excise Management Act 1979.
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I can reassure the whole House yet again that this is not an attempt by the Government to introduce immigration controls by the back door through the CTA. It is simply a clarification of a customs power, which is limited by statute to customs matters. The noble Lord, Lord Cope, asked the most pertinent question when he asked what has happened to cause these powers to be brought forward. This clause is particularly required because of the change in the way that customs powers work. They are now intelligence-led, without necessarily having the same fixed customs points we had before. This power merely clarifies and provides an explicit power for the production of passports and other travel documents.
In respect of the Isle of Man, I understand that consultation has taken place. There are no proposals to change customs arrangements with the Isle of Man. There are no customs checks and they do not apply there. Nothing has changed in that regard. The good news, which I think will reassure the Opposition and Liberal Democrat Front Benches, is that guidance will be published on the use of the powers by the UKBA and that the report of the chief inspector on this matter will be public. Normally all such reports are public, with confidential information withheld.
I hear the siren call, and it is seductive, that this would be better in the Bill. I believe that it would not. Some of the dangers and suspicions of misuse by customs officers in the guise of immigration officers is more than a little unfair on the staff concerned. Police officers have different powers, which they know when to apply because they are trained and they have guidance. Having trained UKBA officers in this regard, it is our intention to ensure that they have guidance as well. With that reassurance, I hope that the noble Baroness will withdraw her amendment.
Lord Lester of Herne Hill: In the debate on 20 October, I promised to bring this issue back in order for the Minister to have the opportunity of clarifying the matter. There is no need at this hour for me to rehearse the basic problem, other than to say that what has been happening, so the Court of Appeal has pointed out, is that the police and only the police have been taking advantage of an exemption from civil proceedings for trespass brought by an offender. The Court of Appeal has expressed great concern about the matter.
The noble Lord, Lord Brett, pointed out that my amendment did not address all the scenarios, especially the situation of an off-duty constable who finds an intruder in his home, which is why I introduced this amendment to take care of that and to make sure that it applies only in the execution of a police officer's duty. I will not of course press this to a Division and I know that the Government are committed to consultation. I mentioned to the noble and learned Baroness the Attorney-General that the Court of Appeal had quoted her and the noble Lord, Lord Hunt of Wirral, in the debates which led to this defence. The Court of Appeal interpreted what was said in those debates as indicating that there was no intention of protecting anyone other than a private individual. It pointed out the constitutional problems if police officers with their own special regime were given this extra defence. That is why the Court of Appeal raised the issue and why it is important to raise it here, but we now need to hear from the Minister. I beg to move.
Lord Brett: My Lords, I thank the noble Lord, Lord Lester of Herne Hill, for raising this issue in Committee. On that occasion we said that while we were grateful that he highlighted the point, we thought it appropriate to consult somewhat more widely to see whether a change to the law would be required outside of this Bill. We accept that nothing in Section 329 indicates that this particular piece of legislation was intended to apply to the police, nor is there anything in Hansard to suggest that Parliament had its application to the police in mind.
As we have said, we will consult interested parties on whether this provision should be amended, and in particular we will examine whether it is an unintended consequence that this section can be invoked by the police. With that reassurance on the consultation, I should be grateful if the noble Lord would withdraw his amendment.
Lord Lester of Herne Hill: My Lords, I am grateful. This was raised on the last occasion at 11 o'clock at night, and now again it is late. Before I withdraw the amendment, perhaps I may make a suggestion as we approach Christmas. The Lord Speaker might consider creating a Christmas competition for the Peer who made on average the briefest speeches throughout the preceding year, including barristers. With that, I beg leave to withdraw the amendment.
""(aa) an order under section 19A or 73B (orders in relation to mandatory licensing conditions),"."
Lord Brett: My Lords, Amendments 128 and 129 are minor and technical amendments that correct a typographical error in Section 185(5) of the Extradition Act 2003 which was made when the provision was amended by the Constitutional Reform Act 2005, and correct a minor error in the commencement powers in relation to Clause 98. This will ensure that the corresponding entries to the clause and the schedule commence at the same time by Treasury order. I beg to move.
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