Clause 23
Borders, Citizenship and Immigration Bill [Lords]
5:00 pm

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

I beg to move amendment 14, in clause 23, page 18, line 6, leave out subsection (5) and add—

‘(5) A designated immigration officer or a designated customs official at a port in England, Wales or Northern Ireland may detain an individual if the immigration officer thinks that the individual—

(a) may be liable to arrest by a constable under section 24(1), (2), or (3) of the Police and Criminal Evidence Act 1984 (c. 60) or Article 26(1), (2) or (3) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I., 1989/1341 (N.I. 12)), or

(b) is subject to a warrant for arrest.

(6) A designated immigration officer who detains an individual—

(a) must arrange for a constable to attend as soon as is reasonably practicable;

(b) may search the individual for, and retain, anything that might be used to assist escape or to cause physical injury to the individual or another person;

(c) must retain anything found on a search which the immigration officer thinks may be evidence of the commission of an offence; and

(d) must, when the constable arrives, deliver to the constable the individual and anything retained on a search.

(7) A designated immigration officer may use reasonable force for the purpose of exercising a power under this section.

(8) Where an individual whom a designated immigration officer has detained or attempted to detain under this section leaves the port, a designated immigration officer may—

(a) pursue the individual, and

(b) return the individual to the port.

(9) Detention under this section shall be treated as detention under the Immigration Act 1971 (c. 77) for the purposes of Part 8 of the Immigration and Asylum Act 1999 (c. 33).’.

I am tremendously confident of a positive response from the Minister on this amendment because it comes word from word from his draft Bill, so I am not seeking to make the Government do anything that they did not want to do themselves last summer. No doubt had they had the legislative time, we would have been debating this with the Minister proposing it rather than me. Being always fair-minded in my opposition, I am sure that I would not have been proposing any amendments to it. The amendment fits very well with the existing Bill. Clearly, there were large parts of the draft Bill that are in other parts of the immigration field and would sit very strangely in this Bill. I believe that this amendment rounds off the existing clause rather effectively. It inserts a number of new sections, which describe why a designated immigration officer may detain an individual. It also sets out the rules about how the designated immigration officer should arrange for a constable to attend, carry out searches, retain any material taken and deliver to the constable what has been taken from the individual. It would allow reasonable force and allow the immigration officer to pursue the individual, and return the individual to the port.

Given that thousands more people will have those potential powers, it is important that we set out the rules regarding detention at port. Indeed, I am slightly surprised that that segment of the draft Bill did not survive, because it seems to fit very well with this part of the Bill and it fits seamlessly into clause 23, which is about immigration and detention. The amendment makes specific the debate that we have just had about the application of the PACE rules and safeguards. In themselves, they are very important, but it would make them more real and bring home as a practicality what we mean when we talk about a rigorous code of practice and conduct for officers at the border.

Even if we accept—we never have done—the Minister saying that amendment 13 would introduce some inconsistencies into the application of the PACE rules, amendment 14 certainly would not. It sets out the sort of powers and protections that are available already in such legislation, so it genuinely would provide great confidence to those who have doubts about the appropriateness and powers of the protection that is  available. These are specific. They would be in the Bill. People would know where they stood. They would know, first, the powers of the immigration officer, and secondly, the limits and constraints on those powers; both are perfectly admirable intentions of any such piece of legislation. As I said, I do not need to persuade the Minister. These would have been his words in other circumstances, so I hope that he can persuade himself that it is a good amendment.

Tom Brake (Carshalton and Wallington, Liberal Democrat)

I am anticipating with joy and glee how the Minister will extricate himself from the amendment and explain it away, given that his Government proposed it. I believe that it sets out a useful blow-by-blow account of the steps that must be taken of a designated immigration officer who detains an individual. It is useful that such action is documented. The proposal seems sensible and it has a good pedigree, so I await the hon. Gentleman’s reply with interest.

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

Despite the encouragement of my hon. Friend the Whip, I was hoping that the hon. Gentleman would speak for a few seconds longer, so that a specific answer could appear.

The hon. Gentleman is right. It is also pertinent that the 2007 Act already does what is proposed. Let me explain again what we are trying to do. It is to be taken in conjunction with clause 22, which we have just discussed. Clause 23 provides that the Secretary of State may, by order, apply any provision of PACE 1984 and PACE (Northern Ireland), which relates to the investigation of offences or the detention of persons by police officers to criminal investigations conducted or persons detained as part of an investigation by designated customs officials or immigration officers.

Clause 22, which we have just discussed, applies provision in the Revenue and Customs PACE Orders to criminal investigations conducted by designated customs officials relating to a general customs or customs revenue matter—the first being subject to the Secretary of State’s designation, the second being subject to the director of border revenue’s designation. That point answers the hon. Member for Ashford. The clause will also apply provision in the Revenue and Customs PACE Orders to persons detained by those officials in such criminal investigations.

That will enable the immediate application of the majority of the provisions of the Revenue and Customs PACE Orders to designated customs officials, including those officers of HM Revenue and Customs who have transferred to the UK Border Agency and who are, under the proceeds that we discussed earlier, so designated. That in turn will allow UKBA’s designated customs officials to exercise the same powers in relation to customs matters at the border as those currently available to officers of HMRC. Equally importantly, that will ensure that when in future the agency’s designated customs officials exercise those powers, they will be subject to the same safeguards as now and in the future, when they are exercised by officers of HMRC.

In due course, however, an order under clause 23 will be made to apply the provisions of PACE or PACE Northern Ireland, as the case may be, and the associated codes of practice—that is an important point to meet the worries of the hon. Member for Ashford—more directly to designated customs officials, rather than relying on the “glossing” of the HMRC PACE Orders,  for which clause 22 provides. Accordingly, clause 23(5) will enable an order made under the clause to amend or repeal clause 22.

In addition, in any order made under clause 23, we propose to address the position of immigration officers. Immigration officers do not at present use powers in PACE when conducting investigations, but they are required, when exercising powers in the context of a criminal investigation, to have regard to the relevant provision in a PACE code of practice. We have put that restriction on immigration officials. We will therefore use the order that we propose to make under clause 23 to specify those provisions of PACE—or, as the case may be, PACE (Northern Ireland)—and the associated codes of practice that will apply to any criminal investigation conducted by immigration officers, and to persons detained by those officers in connection with any such investigation. This order will replace section 145 of the Immigration and Asylum Act 1999 and replace the Immigration (PACE Codes of Practice) Direction 2000 and the Immigration (PACE Codes of Practice No. 2 and Amendment) Direction 2000 made under that section.

Clause 23 will confer all the powers and impose all the safeguards necessary to ensure the proper conduct by the UK Border Agency of its criminal investigations—whether in relation to customs or immigration offences. It will also provide a proper framework for the detention of persons where necessary in connection with those investigations. That is what we are attempting to do regarding clause 23.

The hon. Member for Ashford has put forward his amendments in good faith and with good spirit—I readily concede that. The answer is that that clause, of course, was not the only one that was published in the draft Immigration and Citizenship Bill in July. It is an existing clause, which is a section of the UK Borders Act 2007 in relation to immigration orders, which is now covered by the point I have just made in relation to clause 23. In other words, I agree what the hon. Gentleman is trying to achieve, but my mechanism of getting there is already covered.

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

I am impressed by the ingenuity of the Minister’s response. He almost tempts me to quarry the draft Bill for further things. The temptation is almost irresistible, but I promise the Committee that I shall resist. I accept his explanation and I hope that he is right. The underlying and extremely important issue is that people should have clear rules and know what they are, and that those rules should be completely clear about what immigration officers can do in terms of detention and enforcement. Everyone associated ought to know that. I accept the Minister’s assurance that he is achieving that by other means, so I beg to ask leave to withdraw the amendment.