I beg to move amendment No. 79, in
clause 2, page 2, line 39, at end insert—
'(6A) A person commits an offence if he aids or abets or provides a craft used in the commission of an offence under subsections (1) and (2).
(6B) It shall be a defence for a person charged with an offence under subsection (6A) to prove that he could not reasonably have known that an offence was being committed.'.
With this it will be convenient to discuss the following:
Amendment No. 82, in
clause 2, page 2, line 44, at end insert
(c) on conviction on indictment for an offence under subsection (6A) to imprisonment for a term not exceeding two years for each offence under subsection (1) or (2) aided or abetted, to a fine or to both; or
(d) on conviction on indictment for an offence under subsection (6A) involving a craft, a fine not exceeding the value of the craft.'.
Amendment No. 80, in
clause 2, page 3, line 7, at end insert—
' ''craft'' means any boat, ship, aeroplane, hovercraft, balloon, airship, rocket, train, tractor, motor-car, carriage or any other movable structure used in the commission of an offence under subsections (1) and (2);'.
Amendment No. 81, in
clause 2, page 3, line 15, at end insert
' ''provides'' means owns, lets, captains, pilots or drives.'.
New clause 3—Impounding of craft—
'(1) An immigration officer may impound a craft used to transport a person to the United Kingdom if it appears to him that that
craft may be used or may have been used for an offence under section 2.
(2) The craft shall be released to its provider if—
(a) it appears to the immigration officer that no offence has been committed, or
(b) the provider of the craft notifies the officer of the craft's next destination, being outside the United Kingdom, and agrees to remove the person whom the immigration officer suspects of committing the offence with the craft to that destination.
(3) In this section—
''craft'' means any boat, ship, aeroplane, hovercraft, balloon, airship, rocket, train, tractor, motor-car, carriage or any other movable structure used in the commission of an offence under subsections (1) and (2) of section 2;
''provider'' means the person having charge of the craft.'.
It is a pleasure to serve under your chairmanship, Mr. Taylor, and to face the two Ministers in the Committee. I should first apologise for my absence from the first two sittings, when I was inspecting one of the craft that is less likely to be impounded even if new clause 3 becomes law.
The group of probing amendments is designed to find out how serious the Government are in dealing with the problems of people trafficking, and whether they recognise voters' concerns, both about the different ways in which people reach the country and about the lack of coverage, in particular by Customs and immigration authorities. Those concerns are general, but are particularly strong in my constituency.
I do not intend to make a Second Reading speech. I want to give the Minister the opportunity to assure me, the public and the Committee, on each question that I raise, either that our collective concerns are ill founded, or that they are dealt with elsewhere. In response to any of the amendments, the Minister could say: A, it is not a problem; B, it would be a problem but the law already deals with it; C, it is a problem but this is the wrong way to deal with it; or D, it is a problem and she accepts my thoughtful and constructive intervention. If the answer is A, B or C, it would be helpful if she would explain why that applies.
I shall briefly describe the content of each amendment. Amendment No. 79 would make it an offence to aid or abet a crime committed under subsections (1) or (2). I read the assurances that the Minister gave on Thursday about the intention to prosecute under those subsections, and I ask her: A, B, C or D—which is the answer to the problem of people aiding or abetting such offences? The amendment would also make it a crime to provide ''a craft'' used to commit the offence. I am aware that there was a debate on Thursday about airports, but a number of different craft other than aeroplanes are used to reach the country, and I address that in a later amendment. However, on the question of the use of any craft in committing such crimes, I again ask the Minister whether the answer is A, B, C or D.
I give a defence in proposed new subsection (6B) that the person charged with the offence
''could not reasonably have known that an offence was being committed.''
The question is whether people are providing craft for the commission of immigration offences and
whether they are doing so knowingly or recklessly. If they are doing so knowingly, they are clearly assisting in an offence, and if they are doing so recklessly, they are assisting in the defeating of immigration laws. That is why I want the high standard of proof that they
''could not reasonably have known''.
Amendment No. 82 would provide for penalties on conviction under proposed new subsection (6A). The first essential element is that there should be a recognition of the extent of the offence and the fact that it is one thing to import one person illicitly to this county, but another to import a large number of people, or aid or abet such an offence. That point is dealt with in proposed new paragraph (c). The second element is that it is important to recognise the value of the craft that is used. An offence of using a lorry to import illegal immigrants already exists, and vehicles may be seized for other kinds of smuggling, so I wonder whether there should be a fine, not exceeding the value of the craft used, for the use of a craft in the commission of an offence under subsection (1) or (2).
Amendment No. 80 would define the craft. I have been a little generous and used my imagination, because we need an all-embracing definition. The last few words of the amendment might amount to such a definition, but my question is whether the Minister is confident that any craft used for people trafficking will be recognised in the definition of the offences. Is she confident that the definition is broad enough and that any craft, however unlikely, used in the commission of an offence may be seized? My hon. Friend the Member for Woking (Mr. Malins) has made some play of the use of the word ''rocket'', but people can be fired from rockets without any long-term danger to themselves. They can also use windsurfing boards, hang-gliders and other apparatus.
I have not requested such statistics, because what matters is not what is happening today or happened yesterday but what might happen in the future. I contacted the Library to ask what information was available on the number of people committing offences under immigration laws, but I confess that I did not ask about the means used to reach this country. I thought that it would be appropriate to draft a broad definition to embrace every possible craft.
Does my hon. Friend agree that there is a subtle difference between the number of people who enter the country illegally by a craft and the number of people who are caught entering the country illegally by a craft? The former may never be known, while the latter are a statistic.
That point is likely to be at the heart of many of our debates. If it is an offence for a craft to be used, perhaps the Minister is confident that the offence
embraces all possible craft, and she could assure me that the amendment is not necessary. If it is not an offence, I hope that I have been constructive in tabling the amendment.
I have been listening to the hon. Gentleman's arguments with interest, but does he recall that the party that he supports vehemently opposed the imposition of £2,000 fines even for people found smuggling illegal immigrants into the country, let alone people using space rockets?
Indeed. That was at least partly because the defence contained in proposed new subsection (6B) of amendment No. 79 was not specified. As I understand it, smuggling was a strict liability offence; this is an offence that is committed only if a person
''could not reasonably have known that an offence was being committed.''
It is extremely unlikely that people in a small vessel could not know that someone on that vessel did not have immigration papers. The 57 miles of coastline in my constituency are covered by immigration officials for a maximum of half a day a week. The officials are assiduous in covering the island, but they have a considerable length of additional coastline to cover. That is why it is important to recognise that if people use craft of any kind—surfboards, small yachts or a rocket—
It is covered, as it is
''a moveable structure used in the commission of an offence''.
There are two issues concerning new clause 3. First, it would enable an immigration officer to impound a craft—that would be a significant threat to those who allow their craft to be used illegally for trafficking people. Secondly, if someone has used a craft to come to this country, and it is found that they should not be here, it is incumbent on the provider of that transport to take them back to the country from which they have come. I hope that the Minister will comment on that. The new clause would give an immigration officer the power to impound a craft, again with a broad definition.
May I add my words of welcome and say what a great pleasure it is to see you in the Chair, Mr. Taylor? As the hon. Member for Isle of Wight (Mr. Turner) has made clear, these amendments would ensure that those involved in helping people to reach the United Kingdom without documents face criminal sanction, as well as those who arrive undocumented without reasonable explanation. In so far as that is his intention, I obviously share it. The amendments and new clause 3 also cover, as he described it, some imaginative—wildly imaginative—ways of getting to the UK in a variety of craft, and proposals for what to do with the craft and their owners.
It is absolutely right to focus on both the people who destroy their documents and their facilitators. The offence in clause 2 is aimed primarily at those who destroy their documents, for reasons that I outlined at earlier sittings. I have also returned a number of times to the need to break the power of facilitators. That must be done in whatever ways we can.
Anyone who aids, abets or incites another or conspires with another to commit the offence could also be found guilty of it and be subject to the same penalties as they would for the substantive offence. That is because, as I am sure the hon. Gentleman knows, that principle operates on most criminal offences under common law and will do so on these offences when they are enacted. In any event, a charge of aiding and abetting may not necessarily be the most appropriate charge to bring against a facilitator. We already have a comprehensive set of offences to deal with people who help others to enter the UK illegally and people who help asylum seekers enter the UK where they act for gain. I shall outline those in a moment.
If a person helps someone to enter the UK illegally, for example by bringing them in in a small boat and avoiding immigration control, or stowing them away in the back of a lorry, they can be charged under section 25 of the Immigration Act 1971. Under that section, it is an offence if a person facilitates the commission of a breach of immigration law by an individual who is not a European Union citizen. A person could be charged with an offence under section 25 if they assisted someone to enter the UK illegally. Furthermore, where a person knowingly and for gain facilitates the arrival in the UK of an asylum seeker they can be prosecuted under section 25A of the same Act. That behaviour might be facilitating an asylum seeker to get into the UK in exchange for payment.
One of the important points is that the penalties for offences under sections 25 and 25A are a maximum of 14 years' imprisonment and an unlimited fine, reflecting the seriousness with which we view this behaviour. Those are much higher sentences than would be available by applying the offence in clause 2 to someone who is aiding, abetting or conspiring. In addition, there is already provision allowing for the forfeiture of vehicles, ships or aircraft belonging to a person convicted of an offence under either section 25 or section 25A of the 1971 Act. Section 25C allows a court to order the forfeiture of a vehicle used, or intended to be used, in connection with the offence in certain circumstances. I am advised that the section is drawn sufficiently broadly that it would cover any form of craft used for the purposes of facilitation or facilitation for gain—in other words, the offences in sections 25 and 25A.
Finally, we already have carriers' liability and civil penalty provisions in relation to the carrying of clandestine and inadequately documented arrivals. Under the carriers' liability provisions, carriers can be charged £2,000 if a person who needs leave to enter the UK does not produce an immigration document, unless the carrier can show that the person had that document at embarkation. I hope that what I have outlined reassures the hon. Gentleman. First, aiding
and abetting are already covered under common law. Secondly, helping someone to arrive illegally is subject under existing law to a severe penalty of up to 14 years' imprisonment. Thirdly, other provisions can be used for behaviour linked to, but not going to the heart of, the offence in clause 2 aimed at those destroying their documents deliberately.
That deals with the points on legislation. As the hon. Gentleman will know, however, legislation is only part of the equation. Equally important is how effectively the Government try to operationalise the law and ensure that people are apprehended and prosecuted for this type of activity. He can tell his constituents that under this Government the multi-agency taskforce, Reflex, was established under the National Crime Squad, to involve the immigration service, the police, Customs and Excise and the Inland Revenue, as well as to work internationally with our partners overseas, to ensure that we have a real impact on the organised criminals who are facilitating people smuggling and people trafficking. We have trebled the funding for Reflex, and by November last year 24 major facilitators had been successfully prosecuted as a result of its operations, and 20 large networks of criminal gangs had been disrupted.
I hope that the hon. Gentleman will accept that the Government are determined to use the law to break the power of traffickers, and that the record of the operations that we have put in place is bearing fruit by bringing facilitators to book and disrupting the organised gangs that are behind so much of the people smuggling. I hope that he will accept those reassurances and will not feel the need to press his amendments to a vote.
I thank my hon. Friend the Member for Isle of Wight for the thoughtful way in which he introduced his amendments. He has done the Committee a great service by enabling us to have a useful debate and to obtain useful information from the Minister.
With this it will be convenient to discuss the following amendments:
No. 15, in
clause 2, page 2, line 43, leave out 'six' and insert 'four'.
No. 17, in
clause 2, page 2, line 44, at end insert
(c) where the person has with him a dependent child, to a fine not exceeding the statutory maximum'.
I welcome you to the Chair, Mr. Taylor, and also welcome the hon. Member for Winchester (Mr. Oaten) to the Committee.
The Committee had a good debate on clause 2 when we last met. The Opposition were reassured to hear from the Minister that the proposal was to prosecute only those who tear up their documents. That is a great mischief, and we are at one with the Government in wanting to see it punished properly. Nevertheless, the clause in its present form does not say that, and we hope that she will return on Report with some amendments. The clause says that the offence is committed if the person concerned does not have an immigration document with him or her.
The amendments relate solely to the punishment that will follow if someone is guilty of an offence under the clause as currently drafted. They are probing—there is no question of our putting them to the vote—but through them I hope to draw information from the Minister about how she envisages the clause working in practice. Amendment No. 14 would make the offence summary only, rather than triable on indictment; amendment No. 15 would change the term of imprisonment from six months to four; and amendment No. 17 would mean that the offence would not be punishable by imprisonment if the offender had responsibility for a child—a minor—at the time.
As I said, these are probing amendments. The principal question is how many people the Minister thinks will be subject to the clause. How many offenders will there be per year? That is a hard question to answer, but one can speculate that because of the way in which the clause is drafted, the number of offenders might be very heavy. It could run into many thousands, given that a huge percentage of both port and in-country applicants for asylum do not present travel or other documentation, for the obvious reasons that we discussed earlier. Many are fleeing from persecution and never had identity documents or passports and were unlikely to approach the authorities seeking such documents—I mentioned Zimbabwe recently in that context—or they destroyed them, which is the actual mischief, on the advice or instruction of criminal gangs.
It would be helpful to have a further assurance today that the Government would in no circumstances seek to prosecute anyone other than when they arrive having destroyed documents, which really means those who arrive by aeroplane or boat. Otherwise, if there are prosecutions of the many other thousands who simply arrive undocumented having, for example, crossed Europe with one of the criminal gangs, there is the prospect of a huge number of people being open to prosecution.
We have to consider the effect on our already overcrowded prison system, bearing it in mind—this is critical—that when the courts punish people who are charged with the offence, they will be in a difficulty, because almost by definition, the persons concerned will have no money on them. Thus they will be unsuitable for a penalty such as community punishment or rehabilitation—the old probation and community service orders. A conditional discharge would not be an appropriate sentence, so we must
consider what the courts will have to do and ask how many people are likely to be affected.
If, as is generally understood, about three quarters of asylum seekers in country and at port are undocumented, and if there are about 80,000 applicants per year for asylum, the number of those who are undocumented will be very heavy—perhaps in the order of 50,000 or 60,000. If that so, is there any way of assessing the proportion of those who are undocumented because they have destroyed their documents on an aeroplane or a boat? At our last sitting, I think the Minister said that many thousands—she may have said tens of thousands—destroy their documents, so we are faced with many thousands of prosecutions.
We must therefore consider will happen in practice. An important aspect of a Committee is to probe the effect of the clause, in real terms, on courts and prisons. For example, let us imagine a scenario in which an asylum applicant destroys the documents on the plane or—unless the Minister can give us an absolute undertaking—arrives without documents, presents having arrived illegally in the back of a van, and is then arrested. I am now working towards the probing question of what will be the cost of all this.
On arrest, the asylum seeker will be held in custody and will appear within 24 hours before a lay magistrate, district judge or deputy district judge. On the first appearance, the Crown will inevitably apply for remand. The defence will then inevitably apply for bail, but is bail, under the Bail Act 1976, likely to be granted? The answer is almost certainly no. Almost by definition, the asylum applicant cannot provide a surety or a security, which is a payment of money into the court—in effect, a bond.
What can the district judge or magistrate do when facing an application for bail? He or she will turn straight away to section 5 of the Bail Act. One reason for remanding the asylum seeker in custody is that one cannot get sufficient relevant information about him or her. We should remember that, at the first hearing, it is almost inevitable not only that the asylum seeker will have to be represented but that an interpreter will need to be provided. I point, in passing, to the immense pressure on the interpreters service in London at present. The magistrate has to say whether there are strong community ties or a fixed abode, but there are none of these, so almost inevitably the individual, one of possibly tens of thousands a year—we need to know the anticipated number from the Minister—will be remanded in custody.
Legal aid will be granted. I say that because this offence carries a custodial sentence, so the courts are, quite properly, obliged to grant legal representation. There will be a remand in custody, certainly for a week. During that time, what is called advance information—a skeleton of what the case is all about—will be served by the Crown on the defence lawyer.
On return to the court, the asylum seeker will be asked to enter his or her plea. That takes one of two forms: either there is a plea of guilty or not guilty in
the magistrates court or the asylum seeker will opt for trial on indictment. Here is the rub: we immediately run into six more weeks of custody. That is because, as a matter of rote, the Crown Prosecution Service always asks for and requires a gap of six weeks before it has the committal papers ready for the Crown court committal, so the court remands the case back to itself in the magistrates court for six weeks. Then the defendant comes back and is committed to the Crown court.
Another two weeks probably pass before the defendant appears at the plea and directions hearing at the Crown court. If there is to be a trial, another four to eight weeks may pass before it takes place. We must all remember that, according to a parliamentary answer that I received a year or two ago, the cost to the Exchequer of one day in the Crown court amounts to approximately £8,000. We should also remember that the defendant has so far been in custody for possibly two and a half to three months, at a cost of approximately £30,000 a year.
When the jury returns a guilty verdict, what is the judge to do? I have already shown that the judge has a real problem with the sentence. It is ludicrous to impose a community service order, probation order or conditional discharge. I suspect that it is equally ludicrous to impose a fine of, say, £1,000 on a person who arrived penniless and has no money with which to pay.
It seems therefore that by some judicial mental manoeuvring the judge has to conclude that the offence before him is so serious that only a custodial sentence can be justified. It involves a little mental gymnastics on the part of the judiciary to reach that conclusion, but it is in the Bill—two years on indictment. The defendant is sentenced and serves out his time.
One wonders, incidentally, what is happening meanwhile to the asylum application. Is it on hold? Has it been started? There are limits on the number of visits a prisoner may receive. Can he have two sets of lawyers, one carrying out the asylum application parallel to the criminal proceedings?
The Minister should also tell us why she thinks—she may be right—that the criminal proceedings should be disposed of before the asylum application is disposed of. In any event, here is one defendant who will cost this country a fortune in terms of public expenditure. I have calculated that in an average case scenario the cost to the taxpayer of each such person could be in the region of £8,000 to £10,000, which, when multiplied by the, say, 12,000 who are prosecuted—that is, one quarter of those who actually commit the offence under the Bill as drafted—could cost us £100 million a year.
What happens in the event of the matter being tried in a magistrates court through a guilty plea? A fine may be imposed, then the asylum seeker has to come back before the court on a series of means inquiries, clogging up the already hugely heavy outstanding fine list, particularly in the London courts. It is a potential financial burden of extreme proportions on the
taxpayer. I wonder whether the Government have done any calculations. Will the Minister tell us, first, the likely number of those who will commit the offence under the clause as drafted; secondly, the number of those who would commit the offence under the clause as the Minister would wish it drafted—namely, the document tearer-uppers—and thirdly, how many of those she thinks will come before the courts annually? I think that she is storing up great trouble for the overcrowded prisons and the workings of the courts in terms of public cost.
That brings me on to my probing amendment, which simply asks the Minister why she wants a maximum of two years on indictment. Does she think that such a sentence is likely to be imposed—a sentence higher than that normally available to a magistrates court? Amendment No. 15 is drafted to ask the Minister specifically what the difference is between a six-month and a four-month sentence in the magistrates court. The answer is that there is no difference whatever. The maximum time that anyone serves, having been sentenced in a magistrates court, is six weeks—that is the beginning and the end of it. People are always released automatically by executive decision on licence after six weeks. Certain offences in a magistrates court carry only three or four months, and some carry six. In practice it boils down to little, if any, difference.
Amendment No. 17 is designed to ask the Minister to deal with children. Unless I have this wholly wrong, the asylum seeker whom I am discussing, who has arrived with children, having committed this document offence, will be placed in custody from the word go. If I am wrong, the Minister will tell me in the course of her arguments but it seems that, if the person concerned has dependent children, we will have—I put it at its lowest—the slightly odd situation where that person will go into custody and, I presume, the children will be taken into care pro tem. Is that right? Some people would find that a difficult concept.
Finally, if the Government prosecute people who come here directly without documents, could they find themselves in breach of article 31 of the 1951 convention? I have mentioned the enormous cost to the public purse that would arise from 12,000 prosecutions a year. Legal aid would of course be a major factor. What about the other possible cost to the Government of compensation if someone who should have had the protection of article 31 is wrongfully imprisoned? In understanding the true nature of refugee flight, article 31 provided specifically that refugees should not be penalised for lack of valid documentation.
Article 31 says:
''The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.''
In the case of Adimi in 2000, it was held that a policy of prosecuting refugees travelling on false documents was contrary to article 31. Can the Government distinguish, in respect of article 31, between those
who travel undocumented—people who are smuggled in by large gangs—and those who commit what we all think is a heinous offence, in tearing up their documents at the airport?
In the Adimi case, the court held that the prosecutions of those illegal immigrants using false documentation contravened international law. There have subsequently been a number of successful claims for compensation for those who were wrongly convicted and imprisoned. You will be amazed to hear this, Mr. Taylor, but there have been cases of compensation of £42,000 for three months served and three weeks' imprisonment; £40,000 for three months served; £32,000 for two months served; £40,000 for six weeks served by a single mother with two children; £35,000 for six weeks served and so on. Lord Justice Simon Brown, referring in his judgment to these issues, said:
''What, then, was the broad purpose sought to be achieved by Article 31? Self-evidently it was to provide immunity for genuine refugees''—
Do not forget, Mr. Taylor, that many of these people could be refugees—
''whose quest for asylum reasonably involved them in breaching the law . . . That Article 31 extends not merely to those ultimately accorded refugee status but also to those claiming asylum in good faith . . . is not in doubt. Nor is it disputed that Article 31's protection can apply equally to those using false documents as to those (characteristically the refugees of earlier times) who enter a country clandestinely.''
We need to focus on that issue. People might be caught by this clause who might have protection under Adimi. Lord Justice Simon Brown continued:
''There are, however, within the text of the Article certain expressed limitations upon its scope and these clearly require consideration. To enjoy protection the refugee must (a) have come directly from the country of his persecution (b) present himself to the authorities without delay, and (c) show good cause for his illegal entry or presence.''
Having considered each of those propositions, he stated that
''some element of choice is indeed open to refugees as to where they may properly claim asylum'',
and ''directly'' does not mean in the first country through which the refugee passes. Justice Newman agreed with that opinion and described the convention as
''a living instrument, changing and developing with the times so as to be relevant and to afford meaningful protection to refugees''.
It is important that the Minister, in response to the amendments, deals at length with the case of ex parte Adimi, and provides a positive, copper-bottomed assurance that she has no fears that any prosecutions under clause 2 could fall foul of the protection offered by article 31. Unless she is entirely satisfied about that, not only will it be a principle of great importance to us all, but it could impose a heavy cost on the taxpayer.
My probing amendments seek to draw from the Government a positive indication of the numbers to be prosecuted and the likely cost to the Exchequer. If the Minister has any criticisms of the scenario that I have described involving an asylum applicant who is immediately taken into custody, retained in custody
for the duration and then sentenced, I want to hear her solutions. There may be problems; we simply do not know.
I conclude with the observation that, whatever the Minister may wish, the clause states that:
''A person commits an offence if when he is first interviewed . . . he does not have with him an immigration document which is in force, and satisfactorily establishes his identity''.
I hope that the Minister will respond to my points and that other members of the Committee have opinions on them. I strongly hold the view that tearing up and destroying documents is a serious matter that must be seriously dealt with.
I, too, welcome my hon. Friend the Member for Winchester to the Committee. The hon. Member for Woking has done an admirable job in setting out the reasons behind his amendments, and in probing the Minister on her intentions and her anticipation of the consequences of the measures. She made great play of her view that the measure is intended to be a deterrent—that the intention is not to secure a large number of successful prosecutions and imprisonments, but to prevent people from destroying their documents. We are happy to support a measure that would successfully stop people deliberately destroying their documents. However, as the hon. Member for Woking said, the difficulty is that the Bill does not differentiate between those who destroy their documents and those who do not have documents—lack of documentation is made an absolute offence. We will have to revisit that over the course of the Bill until there is a satisfactory codification. Whatever the Minister's good intentions, once we make law and create offences that can lead to prosecution, such prosecutions will take place. We must ensure that they take place on the right basis. The hon. Gentleman made that point strongly, and I do not wish to repeat anything.
I wish to emphasise three areas. First, there is the position of those who lack documentation. Secondly, there is the point to which the hon. Gentleman referred: the interrelationship, about which there is significant concern, between the offence and article 31 of the convention. As the Minister will recall, section 72 of the Nationality, Immigration and Asylum Act 2002 provides that a person convicted of a serious offence can be excluded from refugee convention protection. Is it her intention that, if someone is convicted and sentenced to two years, that person will fall within the remit of section 72 of that Act? If it is, that will be entirely inappropriate. It becomes a circular trap into which an individual falls. I believe that that would be outwith the intent of, and our responsibilities under, the refugee convention. We should be open to challenge on that basis. Can the Minister make it clear whether she believes that it would be acceptable, in such circumstances, to remove the protections offered by the convention?
Thirdly, the hon. Member for Woking mentioned the Adimi case. We have been here before many times. He will recall that, as a result of the High Court's
finding, an amendment was introduced in another place to the Immigration and Asylum Act 1999. Rather confusingly, section 31 of that Act dealt with article 31(1) protection. The principle behind that amendment was to provide appropriate convention protection under those circumstances. Many assurances were given at that time that there would be a change in prosecution policy and that guidelines would be introduced—exactly the sort of assurances that the Minister gave last week. There was, for a time, a reduction in prosecutions, but there is ample anecdotal evidence that a rapidly increasing number of documentation cases are being tried with summary conviction. Very often, such prosecutions are brought contrary to the Crown Prosecution Service's guidelines and contrary to the Home Office asylum policy instructions. If that is the case, it means that any assurances that the Minister may give this Committee have little value.
What are the current statistics relating to documentation cases, and what are the consequences of the assurances given by the Minister? At what stage does the CPS conduct an audit of its prosecution policy in that area, and does it believe that convictions are being secured—often when a proper, appropriate section 31 defence exists—in magistrates courts, simply for ease of administration? If that is the case, should not we be even more careful about whether the Bill contains scope for a massive expansion for prosecutions for lack of documentation? Should not we concentrate on those who deliberately destroy their passports and not on the wider net currently available to prosecution authorities? The Minister denies that that is the intention, but we know that that will be the consequence if the Bill is passed unamended.
The hon. Member for Woking encouraged hon. Members on both sides of the Committee to express our thoughts, so I shall do so. I was grateful for his illuminating comments and found the scenarios that he painted very helpful in examining the clause. He made the point, not for the first time during our discussions, that we must prosecute only those who have deliberately destroyed the travel documents that can identify them.
We come up against that issue time and again: how do we identify those who have not been issued with identity papers, and those who have been issued with such papers but who have subsequently destroyed them in transit? Is it enough for us simply to ask people who have arrived in the UK, ''Did you have identity papers when you started your journey? Where are they now and did you voluntarily destroy them?'' We can be confident that 100 per cent. of those who arrive in the country without documents will claim either that they were never issued them in the first place, or that they were forced to destroy them by the people traffickers. I cannot imagine an asylum seeker arriving in the UK and voluntarily admitting that they destroyed the papers of their own volition.
The hon. Gentleman's argument is correct, but does that not undermine the assurances given by the Minister on Thursday? If it is impossible to determine that any person has started off with travel documents, it is ipso facto impossible to determine
I understand what the hon. Gentleman says. My argument was not that it was impossible to decide whether documents had been destroyed, but that we cannot reasonably expect that information to come directly from the asylum seekers. We will have to use investigative techniques and intelligence to decide whether the balance of probability is that someone has destroyed their papers voluntarily or was never issued them. I was not making the point that we can never tell, in any circumstances. If that were the case, presumably the hon. Gentleman's position would be that anyone who arrives in the UK without identification should not be subject to criminal prosecution, which would undermine the point of clause 2.
The hon. Member for Woking, in making his points effectively, undermined his party's position. Whenever the Government release the quarterly figures on the number of asylum seekers entering the country, the Conservative party attacks the Government, saying that the figures are too high. That is the nub of the problem. The Conservative party attacks the Government not on the basis of processes, although that may form part of its attack, but on the basis that the total number of asylum seekers being allowed to enter the country and being given support through the social security system is too high. I presume, therefore, that the Conservative party would welcome any reduction in those figures. I accept what the hon. Gentleman said about not pressing his amendments to a vote, but they are probing amendments, so let us probe. How would the amendments reduce the total number of asylum seekers coming to Britain?
That is not the purpose of the amendments. From time to time, we do criticise the Government, if we believe that we should do so, and we hope that that criticism is constructive. We believe that those who are genuine asylum seekers should be granted refugee status. The hon. Gentleman understands, because he pointed it out in his first remarks, that these are probing amendments to allow a debate on the practical effects in terms of prison, costs and ancillary matters.
I am grateful for that clarification. I agree that the amendments are not intended to reduce numbers. Were they to be accepted, they would have no effect on numbers. That would not go down particularly well with the right hon. Member for Haltemprice and Howden (David Davis). On the hon. Gentleman's substantive point about the justice system, justice does indeed cost a lot of money. Whether or not we accept the deterrent value of what is already in the Bill, it is not particularly plausible to say that, because the justice process costs money and involves long delays, people who have broken the law should not be pursued.
Well, the hon. Gentleman made a powerful argument against the clause based on delay and cost. He mentioned a number of figures. He talked of the possibility of 12,000 prosecutions a year, each
costing £8,000 to £10,000. He came up with the figure of £100 million a year. He presumably suggested those figures in order to argue that the provisions as they stand will cost too much.
The hon. Gentleman is entirely wrong. If a crime is committed, a prosecution must take place. Justice must take its normal course. I am not saying that because the cost might be £100 million it is not worth proceeding—quite the reverse. I am asking for a debate on the costs, so that the public are aware of what the consequences might be. Principles are principles. The hon. Gentleman is right that they must be followed irrespective of cost.
I accept that. I simply come back to the point that I made earlier. The provisions in the Bill are intended as a deterrent. The Government cannot possibly know how much of a deterrent they will be and neither can the Opposition. All we can do is enact the provisions of the Bill as they stand in the expectation that they will have some deterrent value. There is some concern in my constituency that people who are arriving in the country without documentation are being allowed to remain in the country for an unjustified length of time. My local authority in Scotland is the only one that has accepted asylum seekers as part of the Home Office dispersal programme. I broadly welcome the measure.
My hon. Friend the Member for Woking has shone a bright and searching light into some of the delays that affect the prosecution of all sorts of crime. Delays would certainly have the impact that he describes on the prosecution of crimes committed under clause 2 of what the Government hope will soon be an Act. The first issue that I should like to raise is whether the hon. Member for Glasgow, Cathcart (Mr. Harris) or my hon. Friend is right. I have my preferences. Should we look at how the criminal justice system operates in respect of these crimes, and is it too expensive and beset with delays? Should the Minister look at additional ways of expediting the prosecution of crimes committed under clause 2 and other crimes committed under the Bill?
It is no good having a clause that is simply a paper tiger. I am talking about a clause under which it is too expensive to prosecute, or which leads to people being in prison only for the time during which they are awaiting trial because at the end of that period the courts decide that it would be inappropriate to impose the maximum sentence. Let us say that they impose a reasonable sentence. The person who is found guilty is released in the usual way, after serving between a third and a half of their sentence, which is found to equal, or possibly to exceed, the time that they spent awaiting trial. That is a useless process.
If the Minister is serious about the legislation, she should be considering an expedited process for crimes of the type that we are discussing. It may be appropriate for her to consider the immigration
tribunal system dealing with all immigration-related crimes.
The second issue in my view—I am sure that I am not alone in this—is that there is a stage between document tearer-uppers and non-documented genuine asylum seekers. There are those who are not really asylum seekers and know it, but they get to this country by some means or other, with or without documents, and choose, for as long as possible, to remain in the background.
I do not wish to be pedantic, but the hon. Gentleman suggested that those who have never been documented are automatically genuine asylum seekers. I am not sure whether that is always the case.
I certainly did not intend to suggest that. Let me give as an example those who perhaps are not smuggled by people traffickers across Europe, who do not get into the back of a lorry in Romania and end up somewhere in the Kent, Sussex or Hampshire countryside, but who simply hitch a lift on a sailing boat out of a harbour on the north coast of France and end up in a harbour or perhaps even on a beach on the south coast of England. Those people fall between the two extremes about which the debate has so far ranged. They may arrive with or without documents, but they certainly arrive with the intention of circumventing the immigration process.
I am just a little concerned that the assurances so generously given by the Minister on Thursday will exclude the prosecution of those people as well, if they started without documents, because people do not need documents to get on a sailing boat. They do not need documents to get on a small sailing vessel at a port in northern France. I hope that the Minister, in repeating those assurances, will add the qualification that, if someone starts without documents but is not, in all probability, a genuine asylum seeker, they can still be prosecuted.
The third issue arising from the points made by my hon. Friend the Member for Woking is that it is essential that we have holding places for those who are charged with immigration-related offences as well as for those seeking asylum. They should be places in which the judicial process can take place expeditiously and in which legal advice is available in respect of any crimes that they may have been charged with and of their asylum or immigration applications. Although I recognise that it is not appropriate for huge numbers of them to be miles from anywhere in the countryside, I appreciate that it is essential that holding places should be provided.
We need to be more robust in respect of my hon. Friend's fourth point: the courts' intervention in the interpretation of article 31 of the refugee convention. The hon. Member for Somerton and Frome (Mr. Heath) said that we were in this place to make law; we are also here to influence the interpretation of the law. My hon. Friend did not go into the full argument—I do not blame him for that; perhaps the Minister will do so when she responds to the debate—but I find it impossible to understand how an intelligent person, even a judge, reading the words of the convention, could conclude that the words ''directly from a
territory'' mean anything other than directly from a territory. In other words, if someone has come via France, Belgium or the Netherlands, they have come not directly but indirectly; they have not made their claim in the first safe country. They are therefore bogus asylum seekers. That is the inevitable interpretation of the words in the convention. The only way in which someone can arrive in this country directly is by air or ship—
A particularly long-distance rocket. They would arrive either by air or ship, which will have made no other landing between the country they are fleeing and this country. If that is not the courts' interpretation, we need to know why it is not and, if they are serious about the measure, Ministers need to legislate to correct their interpretation, because that is the function of this House. Hon. Members are sent to Parliament to ensure, as far as is possible, that the courts and all those outside understand what the law means, and understand that it does not change at the whim of a lord justice of appeal.
Those four points are of great importance and I hope that the Minister will deal with them in her reply. There is a fifth point: assurances given by Ministers are assurances as to policy, as the hon. Member for Somerton and Frome said. The question is how long those assurances and that policy remain current. Is it the Minister's policy, the policy of the Home Office, or the policy of Her Majesty's Government? Is it immutable? If it is not unchangeable, in what forum will it be announced that the policy has changed? If it is possible that the policy will change, it is possible for the Minister, or a future Minister of this Government, to change the policy, and certainly it is possible for a Minister of another Government to change the policy.
The assurances as to the policy for prosecution are bankable only as long as there is no change of Government. That means that we will have put in the law legislation that a future Government may wish, as a matter of policy, to be operated differently, and I am not sure whether that is what the Minister or Liberal Democrat Members desire. I suspect that it is the desire of some of my hon. Friends, although perhaps not all of them.
I repeat something that I said when I was working for Ministers of a different colour in the 1980s and 1990s: it is unwise to legislate and give powers to a future Government that may be used in a way with which one would not be happy.
We have had a wide-ranging debate that has gone further than the terms of the amendment. However, I appreciate the spirit in which the hon. Members for Woking and for Somerton and Frome made their points. Although we have been over this ground before, let me restate both our intention and the reason why the clause is constructed as it is.
It is our intention to use this measure where it is appropriate. That is subject to all the usual caveats that the police, the Crown Prosecution Service and the authorities consider when they judge whether any particular incident has a reasonable chance of successful prosecution and is in the public interest.
They will take both those factors into account in every case in deciding which incidents should go to prosecution. Our intention is to be able to prosecute in certain circumstances people who deliberately destroy or dispose of their document.
In our previous discussions, citing advice from parliamentary counsel in particular, I explained why the clause needs to be constructed in this way, but I shall repeat my argument briefly here. If the clause were constructed with a direct offence of criminalising people who destroy or dispose of documents, clearly the burden of proof on the prosecution would be to establish beyond reasonable doubt that the person had destroyed or disposed of their document. That is difficult to do, for two particular reasons—there may be more.
One reason is that the circumstances leading up to the person saying when they get off a plane and present at immigration control in the UK that they do not have a document, are difficult for the prosecution to elucidate and satisfy to the standard of beyond reasonable doubt. First, they are all in the person's head. Secondly, the only other witness will be the facilitator and, thirdly, most of the events will have taken place either in another country or on a journey outside the confines of the UK. Technically, obtaining the evidence to support such prosecutions is extremely difficult and would render the clause inoperable—it would not be possible to prosecute someone.
The second reason is that, even if we were able to extend the measures that we have already instituted, such as CCTV cameras at Heathrow and training our immigration officers in the observation techniques used by the security services, so that they can try, in as many instances as possible, to link people who turn up without documents with a particular flight—we are doing all those things—in many instances, people are able to hide in an airport; they are able to hide air-side. They do not necessarily present themselves at immigration control immediately on getting off the plane.
Even with all those investigative and intelligence-led techniques, it is extremely difficult to be able to ascertain a certain link. Being able to do that for all flights across all airports raises exactly the kind of resource issues raised by the hon. Member for Woking in relation to prosecutions. Formulating the clause in a more direct way would make it impotent.
Therefore, the clause has been constructed in this way. For it to be an offence, the prosecution has to establish beyond reasonable doubt that someone has turned up without documents. The clause has to be read in its entirety. As Members will know, it provides for a reasonable excuse. That reasonable excuse will be mobilised at the various stages in the process: first, in terms of whether to arrest someone; and secondly, in terms of whether to prosecute them. Only in cases where the prosecution feels that there is a reasonable chance of success and that it is in the public interest will prosecutions ensue.
I hope that that explanation satisfies Members about why the clause is constructed as it is. To do
otherwise would mean that we had no useable offence for people destroying or disposing of their documents.
The hon. Member for Isle of Wight asked what would happen if I were replaced as a Minister or if the Government changed. I hope that he understands that it is commonly accepted that, by strongly emphasising the Government's intentions on the record as part of our consideration of the Bill, the authorities will know how they must administer the process provided for in the clause when it becomes law. I have agreed to write to the Committee—I intend to do so, if not today, tomorrow—to address issues that were raised in our previous sitting about how the authorities will make judgments at the various stages of the process of apprehension, arrest and prosecution. I hope that that will fully convince the Committee that we will prosecute only in the circumstances that I outlined.
The hon. Member for Woking raised the issue of numbers. His basic argument was that the number of people who could be prosecuted is so enormous and the process of prosecution, often involving detention, would be so lengthy that enormous costs would be incurred, the criminal justice system would be trammelled and many people would be put in prison when we already have a difficulty in accommodating the people whom the courts send there.
I shall deal in a moment with the crux of the hon. Gentleman's argument, which I believe is slightly curious, but, on the numbers, he will know that, as a result of measures that we have taken, the number of people claiming asylum has halved. It should be noted that we are talking about a total not of 80,000 a year claims but in the region of 40,000 claims a year. On current figures, between 25 and 30 per cent. of those claims are made at ports, so on average between 10,000 and 12,000 people are claiming at ports.
I envisage the numbers decreasing, but I am not talking about how quickly they will do so, or about any other target. However, it is because of our need to take further action to deal with unfounded claims that we are introducing the measures in the Bill.
We are discussing 40,000 people claiming asylum, of whom 25 to 30 per cent. make their claim at ports. We need to be careful when we talk about claims and total numbers of people because some claimants have dependants, but between 60 and 70 per cent. of claimants at ports who have arrived on a plane, ship or the Eurostar say that they have no documents. The calculation is clear: on current figures, between 10,000 and 12,000 people could be prosecuted unless they had a reasonable excuse for not having their documents, which is provided for in the clause. However, it is clear that there will not be that many prosecutions. As I have said, the Crown Prosecution Service will apply its usual tests of the chance of success and whether a
prosecution is in the public interest when deciding whether to prosecute. As with any other offence or behaviour on which authorities have to decide whether to proceed to charge and prosecution, the authorities will make their decisions based on the cases that come before them.
Does the Minister believe that the prosecuting authorities should interpret the fact that someone has arrived on the service of a secure carrier, such as an airline, Eurostar or ferry company, as evidence that they started out with documents? If so, the number of potential victims of prosecution will be larger.
There will be roughly the number that I outlined. One starts from the presumption that, by and large, people who arrive at a port—and certainly those who arrive at an airport—will have had a document in order to get there. There is the possibility that we entertained at the last sitting, that somebody could claim that they had bribed an official and got into the hold or the lavatory or somewhere like that, but the number of such cases will be minuscule. Although there will be a general assumption in respect of airports, the situation is less clear in respect sea carriers, particularly vessels that carry cargo. Somebody could claim that they were in a freight vehicle and got out on the ferry.
All of that will be examined when people are interviewed. Although a large number of people could be prosecuted, the authorities will apply the same analysis, reasoning and investigation of the facts of the case as presented by the individual as it would otherwise in order to judge on whether it is in the public interest and the interests of justice that a prosecution is brought.
I am not going to give the hon. Gentleman a number. I am attempting to explain carefully that that is a matter for the Crown Prosecution Service. On the basis of the information given by the applicant about how they have arrived, their journey and the reasons why they have not got a document, the CPS will make decisions in the normal way.
The Minister is sending conflicting signals. We are asking her this question today because, at the last sitting, she referred to her thoughts about whether the measure was necessary
''for every one of the many tens of thousands of people who could be prosecuted for destroying their documents''.—[Official Report, Standing Committee B, 8 January 2004; c. 64.]
Is that the pool affected, or has her position changed since 8 January?
As I have just said, on current figures the number of claims in question—which is different from the number of people—would be between 25 and 30 per cent. of the approximately 40,000 people who claim at port. However, the majority would be people who claimed to have had no documents. We are therefore talking about a
potential pool of between 10,000 and 12,000. The hon. Gentleman needs to choose his words carefully because he did not ask me about the potential pool but about the number of people who I thought would be prosecuted, which is a different question. His question is a matter for the Crown Prosecution Service when it considers the cases before it.
I accept that the amendment is probing, but it is designed to reduce the maximum penalty for the offence to four months imprisonment. There are two reasons why I do not want to go down that route. First, in those cases that are prosecuted, even if the prosecution is successful, not every offence will result in the maximum penalty. It is necessary to have the potential for a serious penalty for those cases in which it is patently obvious that somebody is trying to abuse the immigration system, or in which it is suspected or accepted that somebody has tried to do that on more than one occasion. There are too many incidents of people coming into the country illegally, successively being removed and entering again. A serious penalty for such incidents ought to be available to the courts.
Secondly, there is a more general reason, which is the most important one. The clause is about trying to change people's behaviour. I would be happy if we did not have to bring a single prosecution and most people started to realise that they might be criminalised and stopped if they destroy their documents. I want people to turn up at a port and present their documents, enabling us in most cases to identify who they are and where they have come from. That is important for the assessment of the claim and, as we noted last time, if their claim fails it is important in returning people home. That is what I am seeking to achieve—not thousands of prosecutions. People turning up should keep hold of their documents.
It is important that the offence as we are crafting it constitutes a strong deterrent against the behaviour that we are trying to change and deters people from destroying their documents. That is an important reason for having a range of penalties, including the prospect of a serious period of imprisonment. We intend to publicise widely—on carriers, in host communities, and so on—the possibility of being charged and prosecuted for destroying and disposing of documents.
The hon. Member for Woking raised another argument about the cost of a large number of prosecutions. There are already substantial costs to the system from people destroying their documents, which, as I have said, means that we cannot identify people and often have to detain them at the end of the process to try to re-document them. We have just brought a delegation of Chinese officials from China to work through 150 Chinese people whom we have detained because we cannot document them. There are significant costs in the system relating to the consequences of people not having documents. If we can change behaviour to some degree, perhaps significantly, and not have those costs at the back end of the process, the offence will have served a useful purpose—not only by making the system fairer, but by reducing the overall cost to the taxpayer.
I want to ask the Minister about her comment on the publicity in countries. Although I understand the deterrent argument clearly, is there a concern about such publicity? If it says that somebody could go to jail for not having their documentation, how will the Minister balance the message that that may send to genuine asylum seekers who might fear that they could go to jail if—for the good reasons that the Minister is setting out—they do not have that documentation?
We would not seek to say on carriers something about not arriving without a document. However, we would say that if we believe that a person has destroyed or disposed of their documents, they will be liable for prosecution, and we would say what the penalties are. We will make it clear—as I have done throughout the course of the Bill—that people run the risk of being prosecuted where we believe that to be the case.
No. I will deal with the hon. Gentleman's point now rather than later. Of course, there is a mischief in relation to some people who deliberately intend to evade immigration control. There are already provisions on illegal entry and similar offences in the Immigration Act 1971 that would cover that type of behaviour and cases in which we thought that the intention of someone who never had papers and was entering illegally was to use that fact to evade immigration control. We already have legal provisions with which we can prosecute in those circumstances.
I am interested in what the Minister said about giving information on carriers. Could she say a little more about precisely what steps the Government will take to ensure that information is distributed to passengers at the point of embarkation and on the flight? In relation to imports of illegal meat, in the two and a half years that I have been in this place, I have listened to Ministers giving assurances on what will be done, but the experience of most travellers on aeroplanes is that nothing happens.
Clearly, we would want to be selective and targeted about the flights involved. It would be a waste of resources to put the information that I am talking about on flights from which people rarely arrive undocumented and claiming asylum.
That said, I assure the hon. Gentleman that I intend to ensure that we get out the message about the situation and the possible consequences at the point of embarkation and on carriers before people land. It is in our interests to do that, because our intention is to prevent people from destroying their documents—to make them think twice about it. To that end, they need to know that we have passed this legislation, and that they are liable to prosecution if they destroy their documents. We do not need legislation to do that, but
an important part of our implementation of the provision will be to ensure that we communicate as thoroughly as we can to everyone on the flights that we identify as problematic—in that they produce numbers of people who arrive undocumented and claim asylum—well before they land the fact that they must not destroy their documents.
I was grateful for the intervention of my hon. Friend the Member for Glasgow, Cathcart. I think that the hon. Member for Woking was arguing that because of the potential number of prosecutions we should not have a maximum sentence of two years. That is a line of argument that he would not employ with any other crime. On the basis of that argument, are we to reduce maximum sentences for theft, burglary, street crime or violence because the courts might send some criminals to prison? I know that he would not argue that; he will accept that it is a spurious argument in those circumstances, as well as in relation to this offence.
The hon. Member for Somerton and Frome raised two points. First, he argued that if a person received a maximum penalty of two years under section 72, I think, of the Nationality, Immigration and Asylum Act 2002, it would have to be taken into consideration in assessing an asylum claim. Theoretically, that is true: if someone got the maximum sentence, they would be liable under the provisions of that section. However, even then, if a person can show that, despite that, they are not a danger to the community, they will not be excluded from the provisions of the refugee convention.
The hon. Gentleman also made a point about the Adimi judgment and section 31. Indeed, a number of hon. Members mentioned that. Rather than prolong the debate, I should say that we have tabled an important amendment on the subject of section 31, and it would be appropriate to reserve our debate on the matter until we discuss that amendment.
The hon. Gentleman claimed that there had been a significant number of prosecutions since 1999 in which a section 31 defence had been successful. I have no information about that—that has not been said to me, and I have no evidence of that. If he produces that information, I shall certainly investigate it, but as things stand, I have to say that I do not think that that is the case.
I am on weak ground because I have only anecdotal evidence from practitioners. I was not saying that there have been successful section 31 defences, but that in circumstances when such a defence might have been expected, the individual opted to plead guilty and accept a punishment such as four months' imprisonment. I was attempting to make that point on behalf of practitioners who know more about it than I do.
They may purport to know more about the subject than any of us, but we must proceed according to the evidence. I repeat that I have no evidence from the Crown Prosecution Service or elsewhere that that is the case.
I hope that the hon. Member for Woking feels that he has received some assurances and answers to his main questions. The amendments would unnecessarily constrain the courts as to the question of a maximum sentence, and would dilute the deterrent effect of the clause. The clause and the maximum sentence enshrined in it are necessary to provide a fairer system that does not include the delays and problems that he outlined. I invite him to withdraw the amendment.
I am disappointed by the Minister's reply. She has totally misunderstood the purpose of my amendments—I hope that that was not deliberate—and utterly failed to answer some of my questions. She must have not understood, although I made it clear, that these are probing amendments seeking to obtain justification for the Government's actions. More importantly, they seek to ascertain the practical effects of the Bill. It is absurd of her to level at me the accusation that amendment No. 15 seeks to reduce the sentence from six to four months. It does not. It is a probing amendment designed to find out, as I have already asked, how long someone would serve in prison on six, four and three-month sentences. She did not answer that.
Then the Minister said that I am arguing that, because of the cost of prosecutions, we do not need a maximum sentence of two years. I said no such thing. It is ludicrous to say that I am against a maximum sentence of two years' imprisonment. I have sought simply to illustrate the heavy costs involved, and have asked her to provide her best estimate of those costs and comment on the procedure that I think will take place. She has done neither. She talked about the need for the court to be able to impose a serious penalty, and that is right. She talked about a range of penalties, and I covered the penalties that a court can impose and gave reasons why practical difficulties might occur. She did not respond to my observations on those possible, but unlikely, penalties.
Unless I missed it, there was no response from the Minister as to whether the asylum case will proceed in parallel with the criminal case, or whether it will precede or follow it. Will two sets of lawyers be involved? There has been no response to my query about what happens if an asylum seeker who is arrested and placed in custody has children present. What happens to the children? Can she confirm that, in such a situation, those children would go into care?
I outlined a set of practical consequences of the clause. I hope that the Minister will not resort to the mischief of arguing that the Conservative party Front Bench does not want to punish people who tear up their documents—it would be very uncharacteristic if she did. Quite the reverse: we take a strong view about law breaking. Let me make it plain for the final time that the mischief of tearing up documents is very serious. We are at one with the Government in wanting to send a message to people that if they tear up their documents they will, rightly, suffer serious consequences.
I give credit to the Minister, who has perhaps not been briefed adequately to respond to most of the points that I raised. Perhaps, over the next day or two,
her officials will brief her more accurately on whether the practical consequences of what I think will happen are likely. She may write to the Committee. I am disappointed by her response: my purpose was solely to create a peg for the Committee to discuss in detail what would happen in practice.
May I return to the point that the hon. Gentleman made about the Conservative party's serious attitude towards the destruction of documents and wanting to ensure that it is reduced and effective action is taken against it? Since we are nearing the end of the debate on clause 2, can I take it that the Conservative party is holding back all the strengthening amendments that it has in mind for another place? We have not yet seen one here.
The hon. Gentleman tweaks me slightly and probably thinks that he has made a clever point that has raised a few smiles from the Committee, including a small one from me. Frankly, I could have tabled an amendment saying, ''for a maximum of two years on indictment, substitute four years''. To be blunt, that would not have mattered, because my amendments really are probing. He must understand that the Committee stage of any Bill is a time when we discuss what might happen in certain scenarios, and we flesh out from the general principle—with which we all agree—the arguments to cover the nuts and bolts. Far too often, Committees fail to discuss the practical effects of policies on the world outside and those who operate them. That is my best response to him.
I am obviously very sorry that the hon. Gentleman feels that I have not answered his probing questions adequately. In all respects but one, I feel that I have done. Perhaps it would help if, when he is speaking to his own amendments, he did not roam around other amendments that will be considered later. That would help us to manage the response more clearly for him.
On the point about children, I hope that the hon. Gentleman will accept my apologies: I had intended to reply. Does not he agree that, when a defendant appears with a child, that matter should be left to the court to decide? That is what occurs in every other case in which an adult defendant has a child with them: the court makes the decision whether that is an issue material to the determination of a sentence.
The Minister has completely missed the point. I am terribly sorry to say that. I am not talking about the issue of sentence: I am talking about the position of a child on remand or in custody, which takes place during the eight weeks leading up to the trial. No doubt she will deal with that in due course. It is an entirely different point. The court does not decide what happens to an accompanying child when a person is remanded on bail or in custody. That has nothing to do with the court. The court has no jurisdiction over the child. I do not know where she has got the idea that it has. Moreover, the child does not have to be present.
I hoped that the Minister would comment on the interesting suggestion made by my hon. Friend the Member for Isle of Wight about an expedited court procedure in relation to such matters, which could mean that asylum offences under clause 2 would pass through the courts rapidly. However, I do not think that she commented on that. I have expressed my disappointment, and repeat, for the avoidance of doubt, that the amendments were probing. The debate has been useful, and there is no question of my wanting to put any of the amendments to the vote. They were merely a peg for discussion.
Just for complete clarity, does the hon. Gentleman accept that his amendment No. 17 reads:
''Clause 2, page 2, line 44, at end insert
(c) where the person has with him a dependent child, to a fine not exceeding the statutory maximum'.''
On page 2, line 44, the clause reads:
''(b) on summary conviction, to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.''
That refers to sentence and imprisonment, and not to bail. It would be helpful if he understood his own amendments.
I repeat: the Minister is missing the point entirely. This discussion will become extremely tedious for the Committee, if it has not become so already, so I shall write to her about it. One of the matters that I raised was the practical consequences of a remand in custody prior to sentence, invoking section 5 of the Bail Act 1976, on the children of the person who is in the dock. I simply asked the Minister's officials to do some serious research on that matter and to write to me about it. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 59, in
clause 2, page 2, line 45, leave out 'or immigration officer'.
We have had an interesting debate this morning, but have been making rather stately progress. I hope to speed up matters a little in discussing the next few groups of amendments.
I have tabled the amendment to explore the role of the immigration officer, and to seek assurances about that matter from the Minister. The clause expands immigration officers' powers of to make arrests into the area of arrests for criminal offences. Some have argued that arrest either by a constable or by an immigration officer should be made with the support of a warrant. I have considered that view, and rejected it, as I understand that there are circumstances in which it would not be appropriate or possible to obtain a warrant in order to achieve the objective that the Government have in mind.
However, there are serious concerns about the role of immigration officers in arresting a suspect, and I shall comment on those. There is a strong argument, which I have made elsewhere, for immigration officers
to be reclassified to produce an effective border control force. Such a force would have appropriate powers of arrest for crimes that relate to the ports of entry, and everyone would then be clear that immigration officers were not only an administrative body but were capable of investigation and arrest in appropriate circumstances. I do not reject the view that there is a role for immigration officers in that respect.
First, I am worried that, at present, when making an arrest, an immigration officer does not operate within the terms of the Police and Criminal Evidence Act 1984. The Act was drafted for good purposes—to protect the interests of those who are arrested for criminal offences—and, on occasions, we have extended and reformed it as it applies to police constables. We have made analogous arrangements for Her Majesty's Customs and Excise when it is performing a similar role. Some guidance is given to immigration officers in certain aspects of their work, but if it is envisaged that immigration officers should have the powers of arrest that go beyond the immigration formalities into the area of criminal offences, it is imperative that PACE be reformed to take into account the new class of arresting officers. Will the Minister assure me that she intends to publish a code and hold immigration officers to it, and that it will have within it the same provisions as would apply to a constable arresting a suspect under the Police and Criminal Evidence Act?
My second point relates to training. Immigration officers are trained to a high level in many respects, but they are not trained to make arrests, because it is not something that falls within their usual pattern of work. Police constables are so trained. It seems entirely appropriate that, if we are to give a power of arrest to a new class of officers, they must have the training that goes with that power. In a previous sitting, the hon. Member for Woking and I both said that the discretion open to an arresting officer is limited because he must make an arrest if he has a reasonable suspicion that a person has committed an offence, which is the absolute offence of not having documents. Immigration officers must have the training appropriate to the powers that we are now to confer on them.
Thirdly, a substantial process is available for those who wish to make complaints against the police. It is operated by the Police Complaints Authority, which carries out an independent examination of complaints. However, that is not present in respect of immigration officers. There is a small complaints department within the immigration service, but there is nothing like the process of independent investigation of complaints against an officer that would be available to someone arrested by a police constable. If we are to give such a power to immigration officers—I do not reject that proposal per se—we must have available for immigration officers the apparatus that would be available for a police constable making an arrest. I do not offer my view in order to reduce the scope of the Minister's proposal; I do so because if we are to provide powers, we must provide the appropriate
remedies and safeguards, as well. What is good enough for the police service should be good enough for the immigration service or Her Majesty's Customs and Excise in the same circumstances.
I have allowed a broad discussion on earlier amendments, but the amendment now under discussion covers a narrow and specific point and I shall bring to order hon. Members who seek to widen the debate.
I rise simply to make a specific point about the reasoning behind the amendment, as explained by the hon. Member for Somerton and Frome. The operations of immigration officers would be brought within the criminal legal system of Scotland, so I hope that the Minister will not limit her reply to references to the Police and Criminal Evidence Act 1984, which has no application in Scotland.
Let me begin by agreeing with the spirit of most of what the hon. Member for Somerton and Frome said about his amendment. I hope I can reassure him that the existing position is not as deficient as he seems to suppose.
First, immigration officers already have the power to arrest for most immigration offences. The offence in question will, by and large, be detected by immigration officers, so it makes sense and is consistent with the treatment of other offences that immigration officers should be able to arrest for such an offence. The hon. Gentleman is not arguing against that point; he is concerned about safeguards and reassurances in implementing that power of arrest more generally.
Secondly, we are generally trying to ensure that in executing these powers the immigration service is increasingly self-sufficient and independent of the police, which is what the police would prefer. Given our general direction, I therefore agree with the hon. Gentleman that we must ensure that the safeguards and the apparatus in place are adequate.
The hon. Gentleman made three points. First, immigration officers do operate in relation to PACE—I shall elaborate on the matter in the debate on his next amendment. The immigration PACE codes of practice 2000 specify clearly the relevant powers and provisions of the PACE codes that must be adhered to. The letter as well as the spirit of PACE is already incorporated securely in the codes of practice that apply when immigration officers execute those powers.
As the hon. Lady knows, PACE ensures that when implementing the powers, immigration officers and police operate in accordance with the safeguards in the codes of practice when they are arresting people. The fact that the hon. Lady claims that PACE does not apply in Scotland does not mean that PACE is irrelevant in ensuring standards of practice and behaviour by officers when they are arresting someone. I understand her irritation, but asylum and immigration are reserved matters; that does not
mean that how we require immigration officers to behave when they are executing important powers is not safeguarded in relation to how they operate in Scotland. It clearly is, and the codes of practice that I outlined to the hon. Member for Somerton and Frome make that perfectly clear.
I imagine that immigration officers in Scotland are subject to rules equivalent to those of PACE, but they are not subject to PACE because it does not apply in Scotland. The Minister will be aware that the criminal law of Scotland is separate from that of England and Wales and, moreover, is devolved to the Scottish Parliament. Therefore, although immigration is a reserved matter, as far as the criminal law of Scotland is concerned the Minister is incorrect to say that immigration officers in Scotland are subject to an English criminal evidence Act.
I did not refer to the Act itself, I was talking about the equivalent codes of practice, which will apply when people are being arrested. My point is that the same standards will apply to immigration officers in Scotland as in England. Surely the point on which hon. Members should want reassurance is that there will be no dilution or lower standard in how immigration officers apply the powers, wherever they may be operating them.
The second point made by the hon. Member for Somerton and Frome was that immigration officers do not have to be arrest-trained. In fact, they do have to be arrest-trained—as a matter of policy, they cannot arrest people unless they are trained. I know that he will welcome that information. Everyone has to undertake a training course, which is currently delivered by the police. It is a pass/fail course, and people cannot use arrest powers unless they pass. It covers all the relevant codes of practice from PACE and elsewhere. I hope that the hon. Gentleman accepts the reassurance that people must be properly trained before they can implement the powers.
Properly trained immigration officers are capable of carrying out arrests to the same standard as police officers, so there is no reason why they should not be able to arrest offenders when that is necessary. The hon. Gentleman will know that immigration officers have been exercising their powers of arrest for some time—successfully, I think. They can bring particular expertise and knowledge to the offences that we are discussing, particularly because they deal exclusively with immigration crime.
The hon. Gentleman's third point related to the complaints apparatus. He said that, unlike the arrangements relating to Police Complaints Authority, there is no independent complaints procedure in relation to immigration officers. I take the point that there is not an independent complaints procedure nor, in the same vein, an independent body. I also take the point that the procedure needs to be able to command the confidence of people who make complaints, particularly in relation to arrests. However, in the past 12 months we have taken further measures to strengthen the procedure. I will
happily write to the hon. Gentleman with details of what we are doing. Clearly, he is free to revisit the issue on Report if he is not satisfied, but independent people are considering the complaints procedure and advising me, and I am happy to inform him of the detail of that. With those reassurances, I hope that he will withdraw the amendment.
I thank the Minister for both the content and the tenor of her reply. I do not think that she properly addressed the point made by the hon. Member for Perth (Annabelle Ewing), but it came slightly from the blind side, as Scottish law so often does. The way in which, in the circumstances, someone might be prosecuted in a Scottish court and what might apply would repay closer examination, but that is homework for another day.
I am at least partially reassured by what the Minister told me about the procedures that are in place. I still hold to the view that if we are to expand the role of immigration officers as proposed, it will eventually be more sensible for them to be sworn officers, with clear safeguards in respect of their conduct, than to continue to take what has become an incremental approach to providing them with the wherewithal to take on such a role. That said, I am grateful for her reply and I look forward to her writing to me with further and better particulars of the complaints procedure. We must all do our homework on the application of the proposals in Scotland. With that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment No. 60, in
clause 2, page 3, line 10, after 'time)', insert—
' ''first interview'' means a substantive interview conducted under caution and in accordance with the Police and Criminal Evidence Act 1984 Codes of Practice, in the presence of an accredited legal representative, and'.
The amendment follows on almost directly from the previous one. One respect in which the Bill is opaque is in what is meant by the ''first interview''. That is not satisfactorily defined in clause 2, yet the offence is committed specifically at the first interview, so what comprises the first interview will be a matter of potential contention in the courts. Secondly, it is important to the administration of justice that the first interview has the appropriate legal safeguards to ensure that everyone is aware not only of their responsibilities, but of their rights in those circumstances.
I hope that the form of words in the amendment differentiates appropriately a casual encounter with an immigration officer, which may be the first opportunity that the immigration officer has to ask to see papers, and a proper interview conducted under caution that allows the person to give a reasonable excuse. As we said earlier, we have doubts about whether the reasonable excuse forms part of the decision-making process of the interviewing officer. Nevertheless, the amendment would allow that to happen and would give a legal representative the opportunity to advise the person that they should produce the documents if they have them in order to
avoid potential arrest and indictment. That seems a sensible precaution as part of the understanding of what the Bill means.
If the definition is not included, the Minister must persuade us that she has a clear concept, sustainable in law, of what constitutes a first interview and that it is defined elsewhere. I noted that the suggestion had the support of the hon. and learned Member for Harborough (Mr. Garnier) when, perhaps a little out of order, we debated the matter earlier. Without a definition, there is the potential not only of injustice, but of trials being conducted on an incorrect basis and of legal argument, which we all know is very expensive and often counterproductive, about what is the first interview and at what point an offence occurs. We need a watertight definition. As it stands, the Bill is deficient.
My observation is simple: a definition is needed, but the amendment sets out the wrong definition. A formal interview may be expected to take place some time after someone reaches the UK. In that case, the period between their arrival and their formal interview offers ample opportunity for them to disappear. The first interview with an immigration officer may take place at any time—it is much more unpredictable—and that is the time when the powers
provided in the immigration Acts need to be exercised. We want to ensure that people are assessed, if that is the right word, as quickly as possible after they come into the country and not that there should be a guaranteed delay before they are assessed.
The amendment would change the time at which the criminal offence was committed. It would make it an offence to be undocumented or improperly documented only when an individual was being interviewed under caution and in accordance with PACE. I can understand the concerns of the hon. Member for Somerton and Frome that no one should be prosecuted for the offence without the normal safeguards applicable to the handling of criminal proceedings, but I hope that I can convince him that that concern is already met and that his amendment has consequences for the application of the criminal offence in clause 2 that would effectively neuter it. I acknowledge the point made by the hon. Member for Isle of Wight: the definition of first interview in the amendment would be the wrong definition.
It might help if I set out the sequence of events that would arise if someone turned up at Heathrow.
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.