Clause 22
Borders, Citizenship and Immigration Bill [Lords]
4:45 pm
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
I beg to move amendment 13, in clause 22, page 17, line 25, at end add—
‘(10) In the application of PACE orders by virtue of this section—
(a) no person may be detained in an office of the UK Border Agency which has not been designated as a police cell for a period exceeding three hours;
(b) no person may be detained in a police cell under powers granted to the UK Border Agency for more than five days.’.
The purpose of the amendment is to enable us to have a serious discussion about the application of the rules under the Police and Criminal Evidence Act 1984 because they are to be extended. In the last knockings of our previous debate, the Minister said indirectly that a lot of what is happening in this part of the Bill involves extending police powers to non-police officers, so we must carefully consider the extension of the protection from police action that we provide under PACE. We seek in the amendment to make specific suggestions, and to open up that area of debate. The Minister and I agree that the protection and powers that are given to the police under PACE must be carefully considered if they are to be extended to officers who have their own competences but are not police officers.
We suggest that no one should be detained in an office of the UK Border Agency that has not been designated as a police cell for a period exceeding three hours, and that no person may be detained in a police cell under powers granted to UKBA for more than five days. There is a degree of consensus about the need for a code of practice and strict guidelines about what happens to those who are kept in short-term detention under the terms of the Bill. When somewhere is designated a police cell, different rules apply, and it is worth discussing the wider point and whether the application of PACE powers to all customs officers is necessary and desirable. I hope that the Minister will address that large number of issues when he responds.
As the Minister and the Committee know, PACE and the accompanying codes of practice provide the core framework for police powers and safeguards in all police activities that are being adopted by UKBA officers—stop-and-search, arrest, detention, investigation, identification and interviewing detainees. The eight codes of practice cover the range of powers and are directly relevant to the powers given by this clause, ranging from the initial arrest or stop, the search of premises, the requirement for detention and treatment, and recordings. It is not new for PACE powers and restrictions to be given to immigration officers; that has been happening since the Immigration and Asylum Act 1999. The Minister will be aware that there has been great and legitimate debate about the extent to which those powers have been exercised and he will know that interested parties, such as the Immigration Law Practitioners Association, the immigration lawyers lobby group, argue that the powers under PACE have been underused. It argues, and I am not sure that I would go all the way with it on this, that the powers should be supported by a duty to use them. That is worth discussing, but I am not suggesting it with this amendment.
It has been suggested that the Minister’s undertaking to make orders under the 1999 Act did not go far enough. Other bodies, such as the Equality and Human Rights Commission, have said that there are potential human rights implications by leaving that in the Secretary of State’s discretion. The Joint Committee on Human Rights has also welcomed the application of the PACE safeguards to investigations conducted and persons detained by immigration officers and customs officials, although the Committee said that they thought that the Government’s intentions were still more limited than they would have liked.
There is a lot of outside unease and suggestions have been made about how to balance the enforcement capacity, which needs to be effective, and the protection of those being detained. The Minister will be aware that the Government proposed amendments to clause 22 in the other place. Those would have applied PACE and the equivalent order for Northern Ireland to designated customs officials who exercise equivalent functions as HMRC officials. The Government’s amendment allowed certain safeguards contained in the orders to apply to criminal investigations conducted by immigration officers and customs officials in relation to a general customs or customs revenue matter and to the persons detained by such immigration and customs officials. To an extent, so far so good, and that was welcomed in the other place. The problem is that the effect of those Government amendments to clause 22 has been diluted by including the ability to amend or repeal the clause by order under clause 23, which gives a broad power to disapply the safeguards contained in the HM Revenue and Customs order.
Liberty, among other organisations, suggests that the improvements and more have been washed away by that wide-ranging power. The safeguards provided by PACE therefore are now not adequately reflected in the Bill. Liberty says that they would not be aware if the Secretary of State had applied the safeguards in PACE to immigration officials. It argues, and I would like to hear the Minister’s response to this:
“Giving the Secretary of State only the power to apply PACE provisions is unsatisfactory where the extension of intrusive powers is proposed. If this reform goes ahead, at the very least, a requirement for PACE protections must be fully incorporated into primary legislation.”
It is a debate worth having now, although we can consider it at other stages. Liberty has given evidence to the Home Affairs Committee expressing its concerns about extending traditional policing powers to non-policing bodies. I am pleased that even Liberty says that
“sometimes that may be necessary in a certain context”,
because it is necessary in a certain context. Those of us who have argued for greater coherence in our border enforcement agencies have to accept that point. However, if we extend powers that were once available only to the police, the safeguards that we impose on the police need to be imposed on other people—the Minister is looking perplexed—not just at the discretion of the Secretary of State, but permanently. It is not about the current Secretary of State; essentially, the argument is about whether to trust any Secretary of State to be the guarantor of the protections that one would want.
I draw the Minister’s attention to another point made by ILPA about aspects of short-term detention covered by clause 22 and the need for a clear code of practice. ILPA argues that turning police cells that are used occasionally to detain people under immigration powers into short-term holding facilities for the purposes of the immigration Acts could have “bizarre and unwanted consequences”. The short-term holding facilities are meant to have visiting committees—independent monitoring boards—and specific rules that apply in all such facilities, regulating such things as management and the welfare of detainees. ILPA points out that custody sergeants will not welcome their cells being bound by such rules. If the rules do not apply to those held in such facilities, to whom do they apply?
Like me, the Minister will have read the Lords debates carefully and will be aware that his equivalent, Lord West, said that either he was confused or the position was confusing. The noble Minister was right in his analysis: the position is confusing. He wrote a letter, but it did not appear until after the Lords Report stage, so this is the first chance that either House has had to debate the issue properly. I am conscious that the Government want the flexibility to hold people in short-term holding facilities, particularly under customs powers. However, as it stands, the legislation has wider consequences than have been considered, certainly wider than those considered in another place. There is a large fog of confusion that I hope the Minister can dispel.
To avoid the possibility of adding to the confusion, let me be clear: we do not object to the extension of PACE to officers, but we are concerned that the officers should be in the position of the police, which, effectively, they are. We know that PACE already applies to immigration officers because they have the power of arrest. Therefore, as we are extending the power of arrest to others, PACE should apply as well. That safeguard ensures that people are dealt with properly and protected by codes of conduct and practice. It is about balance. It is a Pandora’s box: the lid has been lifted and some fairly unusual and potentially unpleasant things are flying out. Yet again, I seek ministerial reassurance on all of that.