Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I beg to move amendment 7, in clause 9, page 6, line 37, leave out ‘make arrangements to delegate’ and insert

‘designate by approval of the Secretary of State’.

I rise very positively to my feet to move this amendment, Sir Nicholas.

The purpose of the amendment is to make a subtle change. The Minister has already referred to the Carltona principle—it is a good party game to play at the Committee stage of any Bill to see how far you can get through before somebody mentions the Carltona principle. Those of us who do these things regularly can remember from year to year what it is, but I suspect that if we conducted a quiz among Members, many of them would not necessarily know what the Carltona principle is. It dates back to 1943—I see that I am causing puzzlement. I have a briefing that shows that:

“The case most often cited is Carltona Ltd v Commissioners of Works 1943.”

It is an important and sensible principle. It strikes me as bizarre that the ability to transfer powers to an official from a Secretary of State had not been firmly established before 1943—there had been Government Departments for more than a century before then. We might go a long way off-piste musing on, first, the relationship between Ministers and their officials in earlier times and, secondly, the efficacy of Government when there were fewer of either Ministers or officials and this country ran half the globe. I am getting slightly off the subject here.

Let me move back to the powers held by the director of border revenue and the possibility of their transference to another official. That is slightly different from the straightforward transfer of powers from the Secretary of State to other officials. Clause 9 refers to the director of border revenue delegating powers. This amendment seeks to allow that to happen—it is entirely sensible and unremarkable that that should happen—but only with the approval of the Secretary of State. It is limiting the power of the director of border revenue to delegate functions to those conferred by the Bill. The purpose of this is not particularly to modify the powers of the director, but to probe the other functions it is intended to confer on the director. We have had one helpful debate about the role of the director vis-Ă -vis other parts of the immigration system, but this would be an appropriate point in the passage of the Bill to explore the full range of the director’s powers. It is perfectly reasonable to be wary of giving powers to an official if we are not sure of the full raft of powers that that official will have.

It is convenient to have reached this debate, in which we seek to insert the Secretary of State into the process to ensure that we are not giving too much power to an official when in some cases it would be better exercised by the political leadership, so that there is some kind of democratic accountability to this place in the powers of the director of border revenue.

Although this small amendment deals with only one aspect of the director’s powers, I hope that the Minister will take it as an invitation to spread a bit more widely and explain to us the full range of the director’s powers as well, obviously, as the important point about why the Secretary of State should not have some say when powers are delegated further down the organisation.

Phil Woolas (Minister of State (also in the Home Office), Home Office; Oldham East & Saddleworth, Labour)

I rise positively, Sir Nicholas, and not with a quiver to reply to this debate. It is the responsibility of the Minister to put on the record for the Committee and for Hansard, where it is necessary, the intent of the clause. I draw the Committee’s attention to the fact that  my noble Friend was able to do so for clause 8 in the other place. Therefore, that explains my quiver. I was trying to be helpful but it was not necessary because of that.

Let me address directly the delegation of the director’s functions to officials, which clause 9 enables. This practice allows operational flexibility and is necessary. It is already the case with officials in their relationship with the commissioners. Of course, in practice, most of the functions of the director are undertaken by officials under the designation arrangements set out in clause 11. Only designated officials will be able to exercise the front-line enforcement powers currently relied on by officers of Her Majesty’s Revenue and Customs at the border to tackle smuggling. Those powers are not exercisable by the director and are therefore subject to the delegation power.

The amendment would remove the power to delegate and replace it with a power to designate a function with the approval of the Secretary of State. It seems likely—the hon. Member for Ashford has confirmed this—that the amendment is intended to make the delegation of functions by the director subject to approval by the Secretary of State, or at least to restrict delegation of functions to those who are designated by the Secretary of State. That would be inappropriate and unnecessary. Let me quickly explain why.

In exercising revenue functions, the director of border revenue is not subject to the direction of the Home Secretary. The director acts independently but, like HMRC, is subject to the general directions of the Treasury. The director’s functions will be exercisable by designated customs and revenue officials under clause 11, as I said, but it is right that the director should also be able to delegate her functions to others, including those in the UK Border Agency.

At the same time, clause 9 provides some fundamental safeguards. The director must monitor the exercise of any delegated function and the person exercising such functions must comply with their direction. In that context, if there were a need to oversee the director’s exercise of the power to delegate, that role would fall to the Treasury, not the Secretary of State.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I quite take the Minister’s point that the amendment might be defective in that respect. Is he saying that it would be less defective had we inserted “the Chancellor of the Exchequer” rather than “the Secretary of State”? I dare say he would still have opposed it.

Phil Woolas (Minister of State (also in the Home Office), Home Office; Oldham East & Saddleworth, Labour)

Had I risen positively and not with a quiver, I would already have answered that question—sort of. In the revenue functions, the director of border revenue is accountable to the policies of the commissioners, who act on the policy of the Chancellor. The Budget is traditionally the device by which that policy is set in this country. In that regard, the answer is indirectly yes. That explains why the Minister for Borders and Immigration is also a Treasury Minister for the purposes of customs and revenue. I would probably have been advised to resist the amendment in any event, but I would have done so very gently.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I am delighted that we have teased out not just why the Minister opposes the amendment, but the degree of gentleness with which he wishes to  treat it. His explanation is perfectly reasonable so I beg to ask leave to withdraw the amendment.