Clause 54
Borders, Citizenship and Immigration Bill [Lords]
4:30 pm

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

I beg to move amendment 59, in clause 54, page 44, line 18, leave out ‘thinks’ and insert ‘has reasonable suspicion.’.

It is with some trepidation that I ever step into the potential quagmire of the relationship of legislation to Scotland, which is always particularly sensitive in front of hon. Members from Scottish constituencies. However, there is and has always been a difficulty with immigration legislation and Scotland since the devolution settlement, the requirements of Sewel and so on.

Those of us who are veterans of the 2007 Bill will remember that there were problems at the time, because the Government could not persuade the then Scottish Executive to do what they wanted, which was particularly ironic because in those days the Scottish Executive was run by the Labour party. I remember asking at the time what would happen if things were like this then—what would happen if perchance Scotland ever found itself with an Administration run by another party, as we now have. I assume that is why we have what is being firmly written into UK-wide, non-devolved legislation—to ensure that we do not have such problems.

The specific issue addressed by our amendment, which simply removes “thinks” and inserts “has reasonable suspicion”, is to probe what the Minister means. “Thinks” seems to be a word that is not particularly suited for legislation. It would appear to allow an immigration officer incredibly wide powers if he “thinks” something about an individual. The phrase “has reasonable suspicion” would not only have more legal force but would be somewhat more precise. Frankly, it would also be less likely to give rise to future challenges under various provisions in human rights legislation. Whatever we write into the Bill, the Minister will be aware that it can be challenged under various other Acts that Parliament has passed, notably the Human Rights Act. Simply allowing an immigration officer to “think” something about an individual when it is not clear that they would have a “reasonable suspicion” that that person was subject to a warrant for arrest, which is what the clause says at the moment, is problematic. The definition just seems to be rather wide and rather woolly. I could be disabused of that view by the Minister, but I would like some sort of explanation as to why there is this particular wording in the clause.

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

I shall try to respond to the amendment that the hon. Gentleman has tabled to his satisfaction, in the hope of persuading him to withdraw the amendment.

Once again, what we are talking about here is the extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland, recognising the particular circumstances that exist there and also the relationship between the immigration official’s power to detain and the power of arrest, which is what the clause is about.

I would like to explain the clause, Mr. Gale, if that is within your strictures. It enables a designated immigration officer—earlier, we discussed how the process of designation happens—at a port in Scotland, by which we mean airports as well as seaports because “port” is a catch-all word, to detain an individual for up to three hours pending the arrival of a constable, if the immigration official thinks that the person is subject to an arrest warrant. That is an important difference, as my hon. Friend the Member for Midlothian will know.

The power, as extended to Scotland, reflects the requirements identified in Scotland, in conjunction with UKBA, and it will provide UK border force officers in Scotland, once they are trained and designated, with powers similar to those of their colleagues in the rest of the UK.

The power to detain an individual for up to three hours can be used if the immigration official thinks that that individual is liable to arrest under specified sections of the Police and Criminal Evidence Act 1984 or the  Police and Criminal Evidence (Northern Ireland) Order 1989, or if the individual is subject to a warrant for arrest. So the answer to the hon. Gentleman’s question—essentially he asked what the difference is between “thinks” and “has reasonable suspicion”—is in relation to those PACE codes.

The powers were introduced in response to a need for powers for immigration officials to deal with those individuals, including British and EEA nationals, who are of interest to the police. So the measure is a read-across and it also has an important read-across to the debate that we will have later on police powers. Essentially the immigration official is being asked to take a judgment on whether or not he or she thinks, according to the PACE guidance, that that individual passing through the border is subject to a warrant for arrest in Scotland.

During the passage of the Bill in the other place, the noble Lords expressed concern that the new powers did not extend to Scotland. The Government therefore committed to work with the Scottish Government, the Scottish police forces and our own people in the agency to look at the issue. We are pleased that a legislative consent motion has been approved in the Scottish Parliament to extend the power. That happened because it relates to police powers, which are devolved, not immigration officials, who are of course answerable to UKBA.

David Hamilton (Midlothian, Labour)

Does the Minister accept—I made this point last week at the wrong time—that the measure requires a UK policy in legislation, and we require a UK police force. At the end of the day, we have a patchwork quilt. We have to talk to the Scottish legislators, but a UK police force would change that position.

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

We will have that debate later. The Government’s response is that the measure relates to police powers. We are trying to knit together the two so that police forces, which would not be part of the UKBA under the proposals of the hon. Member for Ashford, also have a role working with the UKBA. My hon. Friend is absolutely right that the UKBA is as it says—immigration is not a devolved matter.

On the specifics, a designated immigration officer may search a detained individual for potential weapons and anything that might be used to assist escape. If, during the course of such a search, the official finds anything that might be evidence of the commission of an offence, he or she must retain that evidence. A designated immigration officer will also be able to use reasonable force when exercising that power.

The extension of the powers to Scotland will mean that this important measure will cover the whole United Kingdom. In other words, our strategy is to bring police-like powers into the agency for a more effective partnership with the police. It is important to point out that we are talking about the power to detain, not the power to arrest.

The measure could be used for non-immigration, criminal purposes. In other words, if the immigration official suspects that someone is wanted for arrest in Scotland, or that someone is on a watch list, they can detain them and call the police, who can then decide whether to go and arrest them.

Let me turn specifically to amendment 59, which is probing. During the passage of the UK Borders Bill, the detention at ports powers generated much debate and correspondence on four issues: first, immigration officers getting police-like powers; secondly, the non-application of PACE codes of practice to the exercise of the powers; thirdly, the designation criteria and adequacy of the training, which we covered earlier; and, fourthly, the non-application of the powers to Scotland. The amendment—the hon. Member for Ashford does not claim otherwise—would have no practical effect on the threshold that designated officials apply when deciding whether the use of the detention power is appropriate. Rather, it addresses what constitutes a reason for a person to detain an individual and call the police. I am advised that it would introduce an inconsistency in the application of the power depending on whether it was being exercised in England, Wales and Northern Ireland, or in Scotland, but I concede that it would make no practical difference to the operation of the power.

The amendment would require a designated officer at a port in Scotland to have a reasonable suspicion that an individual might be the subject of an arrest warrant. Meanwhile, a similar officer in England, Wales or Northern Ireland may detain an individual if he or she simply thinks that a person might be the subject of any such warrant.

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

I am puzzled by this argument. The Minister previously said that there would be no practical difference, but he now says that there is a practical difference. If the latter is true, it suggests that immigration officers in England, Wales and Northern Ireland are detaining people when they have not got even a reasonable suspicion that they have an arrest warrant against them. Is that what he is saying?

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

I am sorry, but the hon. Gentleman did not let me finish my argument. He is disagreeing with my conclusion before I have made it. I will not detain the Committee much longer, because there is no practical difference in implementation; it is simply that there would be an inconsistency in the legal regime if the amendment were agreed to.

Briefly, the amendment would require an officer in Scotland to have reasonable suspicion. Meanwhile, an officer in England, Wales or Northern Ireland, as the hon. Gentleman says, may detain an individual if he or she simply thinks that a person may be the subject of any warrant. I imagine that the intention behind the amendment is to highlight the importance of ensuring that the powers are exercised reasonably, which is to say appropriately and proportionately. I share that view, which is also the Government’s—quite right too, in my opinion.

In England, Wales or Northern Ireland, a designated immigration officer must reasonably think that the things specified in section 2 of the UK Borders Act 2007 apply before exercising the power under that section in relation to any person. That power is clear enough. The same would be true of a designated official in Scotland, in accordance with clause 54. Moreover, we have already set out clearly in standard operating procedures, which are published on the UK Border Agency website,  circumstances in which it would be appropriate to exercise the power in section 2 of the 2007 Act and details of the associated safeguards and monitoring arrangements.

My argument is simply that the established practice in England, Wales and Northern Ireland, which is backed up by that standard operating procedure, is now being applied to Scotland. If the amendment were agreed to, there would be a different set of operating procedures in Scotland and a different interpretation of those procedures. Although the practical impact might not be different, that would cause inconsistency.

This is not a point of principle; it is simply a point about consistent legislation. One small aspect of the provision, for Committee members’ information, is that, in Scotland, an individual who is liable to be detained under section 2 is likely to be identified by a designated immigration officer on the basis of one or more of the following: an entry on a watch list of an individual who is subject to an arrest warrant and is detected by the immigration officer during travel document examination; an alert issued by the joint border operations centre—or e-Borders arrangements, as it were—on the basis of information received in advance of travel in respect of an individual who is subject to an arrest warrant and is detected by the immigration officer either at arrival gates or by an immigration officer during travel document examination; or on information or intelligence received, through existing channels, from another law enforcement agency about an individual who is subject to an arrest warrant and is detected by the immigration officer either at arrival gates or embarkation controls, or during travel document examination.

The clause is required to stand as it is for the consistency of policy throughout the United Kingdom. I hope that I have answered the hon. Gentleman’s question. I appreciate that it is not a hugely important point, but we like consistent legislation.

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

I am grateful for the Minister’s full explanation of an amendment of one word in the clause.

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

It is important in Scotland.

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

Indeed. I take the point made by the hon. Member for Midlothian, which is that much of the complication—the patchwork quilt, as it has been described—would be solved if we had UK-wide border police with the same powers, operating methods and systems in all parts of the UK. Unless and until we face the unwelcome event of Scotland becoming an independent country, that would be the simplest and best solution.

Our debate has given a small illustration of a corner of a wider difficulty. In this instance, immigration is not a devolved power, but policing is, so those who police immigration fall through the cracks. That is why the Government had problems with the 2007 Act, and it is why we are having difficulties with this issue in the Bill. The debate has been extremely useful because it has illustrated that wider and very important problem to which we will return later in our considerations. In the meantime, I beg to ask leave to withdraw the amendment.