Clause 16 - Immigration Services Commissioner: power of entry

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 3:00 pm on 22nd January 2004.

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Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester 3:00 pm, 22nd January 2004

I beg to move amendment No. 95, in

clause 16, page 18, line 14, leave out from 'dwelling' to end of line 21 and insert—

'(7A) Nothing in this section shall authorise the disclosure of documents or information subject to legal privilege.'.

Clause 16 has had widespread support. When the controversial measures in the clause were announced by the Government, there was support from all parties for trying to improve the quality of advice given to asylum seekers and for getting tough on rogue advisers who are ripping off some of the most vulnerable in society. The clause has some sensible measures for setting out the detail of how to track down businesses that are providing a bad service to asylum seekers.

Amendment No. 95 is designed to probe the Government's thinking on one aspect of how that will be done. It is necessary to have in place the power to obtain a warrant to enter and search premises where the police or immigration service have reasonable grounds to assume that bad immigration advice is being given. It will be difficult for the authorities to track down such individuals unless they are able to enter their offices and examine case notes. If an asylum seeker alleged that they had been given bad advice or that emerged in interviews as part of an appeal, and immigration officers had concerns about advice that had been given, it would be important for the authorities to be able to investigate that.

I have no problem with the power to obtain a warrant, but amendment No. 95 would provide that during investigations great attention is paid to the long-standing privilege between a client and their legal adviser. That is a contradiction, because we want to identify rogue advisers while not putting at risk the relationship between a client and a good legal adviser. We are concerned that as part of the search warrant exercise, papers may be gone through that are part of the confidentiality between a client and their lawyer. Will the Minister explain how she can overcome the problem of protecting the right to privacy and the special relationship while allowing the authorities to examine the papers to assess the quality of advice?

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I think that I follow the hon. Gentleman's argument, but I am a little concerned about his use of the word ''bad'' in relation to advice. Does he mean poor quality or criminal? Allowing the authorities to search people's premises because they have been giving poor quality advice is one thing; allowing them to search people's premises because they are suspected of taking part in a criminal scam is another. I wonder whether the hon. Gentleman is unwittingly using language carelessly.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

The hon. and learned Gentleman is right to pull me up on my layman's use of language, but I am arguing about the Government's phraseology on the ability to obtain a warrant to investigate whether an unqualified person is giving advice.

My argument on confidentiality remains the same for two reasons. First, the asylum seeker has given information on the basis that there is a client relationship and an element of trust. Secondly, other individuals on the premises may be operating legally and their information should be protected. An absolute assurance is needed that when investigations take place, the search and the information revealed is handled sensitively to protect the source of the information—the asylum seeker. Will the Minister give some assurances on how the Government plan to deal with the information without thwarting the intention of the clause, which we support?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 3:15 pm, 22nd January 2004

I have a number of points to make. The first has been referred to and is the question of privilege. As we know, privilege is important in life, whether it is between doctor and patient, clergyman

and parishioner or solicitor and client. I hope that the Minister will say more about that, because the relationship between a client and his solicitor is entered into often only on the basis that the client knows that his relationship and documents are and will remain privileged. That is an important principle, which I hope the Minister will consider.

I turn now to amendment No. 96. I am indebted to Mr. Clancy, director of the Law Society of Scotland, with whom I discussed the matter. I hesitate to trespass on Scottish matters, because the hon. Member for Perth (Annabelle Ewing) and the hon. Member for Glasgow, Cathcart—both of whom have contributed fully to our debates—are here. The clause concerns warrants. It is commonplace in the English courts for an application for a warrant to be laid before a district judge or a magistrate.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

It is the next amendment. My goodness. Does not that show how eager I am to get to the point? I wondered, Mrs. Roe, why the hon. Gentleman did not mention it. I shall sit down.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

Order. I was wondering what point the hon. Gentleman was coming to before calling him to order, but now other hon. Members have done so.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I will save the balance of my remarks, which are substantial and interesting, for later in the debate.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

I fully support amendment No. 95. I take the view that the Government's proposals go too far in lifting legal privilege, which is an important doctrine in the legal systems of the United Kingdom and has been recognised as such by the ECHR. It has also been recognised recently by the Minister's colleague, the Under-Secretary of State for the Home Department, the hon. Member for Don Valley (Caroline Flint) in the debate on the Report of the Crime (International Co-operation) Bill, in which I participated. She said:

''There is extensive case law on legal professional privilege, which is a fundamental condition on which the administration of justice rests.''—[Official Report, 14 October 2003; Vol. 411, c. 43.]

I entirely concur with the hon. Lady's comment. What possible justification can there be for lifting professional privilege?

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I hope that I can assure hon. Members that the measure is necessary and proportionate. It does not jeopardise and would not in any way be contrary to the client's interests—that is the central issue here—or the preservation of the principles of legal privilege. Clause 16 would allow the commissioner, in pursuit of his statutory remit, to regulate advisers and ensure the highest quality practice among advisers, and to seize and retain any material for which a search is authorised.

In order for the commissioner to gain evidence relevant to his statutory duties, he would probably need to include material that is subject to legal professional privilege. However, this amendment would prevent the commissioner from accessing such material, even though it is likely to be of substantial

value, if not essential to his investigation. I understand the hon. Lady's concerns, but I do not think that the amendment is necessary to achieve what hon. Members want to achieve.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

The concern that I have is not about the individual examining that material—that is essential if they are to make a judgment about the quality of life being given—but about its disclosure, what may happen elsewhere and whether it would be used as part of the general profile of the asylum seeker.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I agree and I was getting to that point. The key issue is the question of disclosure, as the hon. Members for Winchester and for Woking have suggested. The rationale behind the doctrine of legal professional privilege is that the administration of justice requires that everybody should be able to consult a lawyer—in this case, an immigration adviser—or prepare a case for litigation, without fear that information given to their lawyer or adviser will later be revealed in court against their wishes and interests, or revealed in a process that would be against their wishes and interests. The doctrine thus protects those being advised, primarily in the context of litigation in which they are involved.

Clause 16 is not intended to compromise those who have received advice from unregulated advisers and I do not believe that it will do so. The commissioner has no remit and no power to investigate the client and their immigration status. That would be contrary to his statutory remit. Onward disclosure by the commissioner of information that he has obtained during the exercise of his statutory duty is limited by section 93 of the Immigration and Asylum Act 1999. The purpose of this power is to provide information to prosecute unregulated advisers, not to investigate the immigration status of those whom they are advising.

The commissioner's statutory remit relates only to the regulation of advisers. The information will not be forwarded to the IND. The concern is that the information may leak into the process of determining someone's immigration status or how we deal with them. The limitations are set out in section 93, which specifies, in addition to the fact that the person's consent must be obtained, four purposes for which the commissioner may disclose information onwards. Those would not include disclosure to the IND on immigration matters.

I am entirely confident that the commissioner would not abuse his power. He is an independent regulator, his powers and duties are set out in statute and he is clear about the issues relating to disclosure. I do not believe that the limitations set out in statute and the commissioner's status and purpose as an independent regulator would allow him to pass information on to the immigration system. The purpose of the power is to prosecute unregulated advisers, not to investigate the immigration status of those whom they are advising.

The power is subject to the requirement of a warrant. Before the commissioner can exercise the powers of entry, search and seizure, he must satisfy a justice of the peace on a number of conditions, which are set out in clause 16(2) and (3). Those are intended

to ensure appropriate and proportionate use of the powers. If the JP considered that there was any defect in the commissioner's proposal, a warrant would not be issued.

For the reasons given, I think that the clause will not result in onward disclosure to the immigration system and that, as far as the interests of the client are concerned, the principles of legal privilege will be sustained. I therefore hope that the hon. Member for Winchester will withdraw the amendment.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

Again, the Minister has reassured me, particularly regarding onward disclosure, which was the purpose of tabling the amendments. I am reassured that the information that is an element of privilege will not get into what are the wrong hands from the asylum seeker's perspective but, as ever, other issues cropped up in my mind as the Minister was talking.

I shall place two concerns on the record. First, we are talking about information and papers that relate to an individual asylum seeker's claim. Through no fault of their own, the asylum seeker may suddenly discover that the person advising them and, indeed, all their papers are to be taken away and investigated from the perspective not of the asylum seeker's case, but of the advice that is being given. There is a real concern that if, in a twin-track process, that individual is due to appear the next week at a critical hearing, they will have to say that they have no legal advice and they are a little bit stuffed, because all their papers have been taken away and are being investigated by someone else, which has nothing to do with them. The power is not only to look at and seize, but to retain the papers. In such circumstances, there is anxiety about what would happen.

A second concern, which has just popped into my head, is that we are assuming that the investigation to examine whether an unqualified individual is giving advice will prove that they were doing so. However, there may be no such evidence. We need reassurances that in those circumstances all the papers will be given back as soon as possible so that the person who may turn out to be qualified and giving good advice can carry on doing so. As I thought of those things rather late, the Minister may not have a chance to respond to my questions.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

In the circumstances that my hon. Friend describes, would there not be a potential issue involving the Legal Services Commission and legal aid, especially if the ideas of the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy) about restricting legal aid for a first interview go ahead? The process would effectively have to start again after that. I hope that there will be a marriage between the administrative arrangements and the legal arrangements.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

My hon. Friend makes a good third point. It is a pity we did not deal with all of them earlier.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Does not this tie in with the concerns that we expressed earlier about clause 10? Irrespective of the fact that the documents have been taken away for some other purpose, if the tribunal system concludes that it will nonetheless go on to take a

decision that could be adverse to the asylum claimant's interest, that claimant has no recourse to the hierarchy of appeal courts. We should think about that more carefully. The issues that the amendment reveals are more complicated than they appeared at first blush. There are several interlocking issues that need to be considered. Charming as the Minister's response has been to these questions, she will not have had time to get her head round all of them straight away. I hope that the hon. Member for Winchester will persuade her to come back on Report with a more considered view on the whole matter.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I am grateful for the hon. and learned Gentleman's intervention, as it adds another issue. Perhaps no one on the Opposition side of the Committee read their briefings properly in advance and we should have raised these points earlier. The Minister may have detailed answers which we do not have time to hear because of my stupidity in not raising these matters earlier. However, I hope that she will reflect on the fact that although we have no concern about the clause, and we are reassured on the point about the onward disclosure of information, what has emerged in the last five minutes is concern that asylum seekers could lose out as a result of the process. If investigations are taking place and they do not have papers or an adviser, asylum seekers could end up falling foul of the system through no fault of their own. At some stage, if there is time, I should be grateful to hear what the Minister has to say on the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I beg to move amendment No. 96, in

clause 16, page 18, line 23, leave out

'or a justice of the peace'.

The hon. Member for Woking jumped way ahead and started to deal with some of these issues. I wish he had continued because I am not entirely sure of my ground on this one and even the Prime Minister is occasionally allowed to read out things at Prime Minister's questions.

The amendment would ensure that arrangements are in place in relation to Scotland, where a sheriff only and not a justice of the peace will be entitled to grant the search warrants referred to in the clause. The view of the Law Society of Scotland is that the power to grant warrants under clause 16 should extend to sheriffs only; the hon. Member for Perth will be able to explain why that power is required in Scotland. However, I am sure that the Minister will reassure the Committee, as ever throughout the Bill, that the arrangements being put in place are satisfactory in respect of the occasional differences that occur in relation to Scottish law.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

Was my hon. Friend going on to refer to clause 67 of the Anti-terrorism, Crime and Security Bill on the next page of his notes?

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I was going to say that I was grateful to my hon. Friend, but I am not. I am sure that if he had been able to speak for longer, he would have said that

a similar point was made in relation to search warrants under section 67 of the Anti-Terrorism, Crime and Security Act 2001. It is a jolly good point and I hope that the Minister has a chance to address it.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 3:30 pm, 22nd January 2004

The hon. Gentleman has made the point made by Mr. Clancy from the Law Society of Scotland. The question here is the power to issue a warrant. A number of serious issues are heard before magistrates in England. They can hear interlocutory applications and bail applications in cases ranging from murder to trivial offences. A huge variety of matters come before magistrates in our jurisdiction. It is thus thought that they carry greater responsibility than Scottish magistrates. Even on interlocutory matters such as bail conditions and so on, the more serious cases would go automatically to the sheriff and the magistrate would play no part. It is thus argued forcefully by the Scottish Law Society that is more appropriate for a serious matter like a warrant to be reserved to a sheriff rather than to a magistrate.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

On a point of information, although I understand that the system of JPs is being reviewed, and the hon. Member for Perth may want to refer to that, JPs already sign warrants for search and arrest.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The very point that I put to the director of the Scottish Law Society. I asked whether warrants are issued by JPs in Scotland. He said yes, which in a sense detracts from my argument. The principle that the Law Society was propounding is quite simply that there is a difference between the jurisdictions of the magistrates in the two countries, which should be reflected in this part of the Bill.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

I support the amendment. The key issue may be that in Scotland as a general rule JPs are not legally qualified. That should be the starting point. Echoing the points made by the hon. Member for Woking, that is the crux of the matter. The position may well be different here.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

Not in England. That raises another issue for hon. Members with seats south of the border. In Scotland we have a clear role for the sheriff and the sheriff courts. The concern is that the measure would unduly upset the balance of law in Scotland with respect to the operations of the sheriff court and the operations of JPs.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Without being tempted to digress from the specific issue, would it not be inconsistent not to give the power of authorisation to JPs in this circumstance, but to allow them to retain the power to grant warrants in other circumstances outwith the remit of the Bill, simply because they are not legally qualified? If we are not going to give them this power, why should they retain their current power?

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Spokesperson (Social Security (SNP Shadow Scottish Minister); Education & Skills; Home Office; Law Officers; Work & Pensions)

The hon. Gentleman poses an interesting question. My attitude would be to preserve the important role of the sheriff and the sheriff court system. It has done the Scottish legal service a lot of credit down through the centuries. The hon. Gentleman referred to the ongoing review in

Scotland of the role of JPs and, in effect, laymen. That issue may arise in the review.

Returning to the amendment, I urge the Minister to reflect on the issue, because it is important to Scots law. To echo the point raised by the hon. Member for Winchester—prompted by the hon. Member for Somerton and Frome—it was accepted in the Anti-terrorism, Crime and Security Act 2001 that the power to issue a warrant should rest with the sheriff and the sheriff court. I do not see why the position should be different now.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

Perhaps I might be allowed to respond to the points raised earlier by the hon. Member for Winchester. He is right about the potential impacts on the immigration process of a person whose documents were seized as a result of the commissioner's investigating his adviser. The issues are important. They are logistical issues of administration, which we must get right.

We are speaking to the commissioner about how to ensure that people are not disadvantaged if they lose their adviser. We have a process of immediate liaison with the Legal Services Commission to appoint a new adviser. I am happy to write to the hon. Gentleman, when we have concluded discussions with the commissioner, outlining that process in some detail. He is right that we need to establish processes to ensure that a person's immigration application is not disadvantaged by his adviser's being investigated.

On amendment No. 96, this is one of the rare occasions when a Minister can say that everyone is right in the points that they made. On this and some Government amendments to come later, we appreciate the points that have already been made. We are consulting Scottish Executive colleagues on whether only sheriffs should have the power to issue the warrants. Notwithstanding the comments of the hon. Member for Perth—to whose knowledge I defer—the position of JPs in Scotland is complicated. I take the point made about the different jurisdictions, but some JPs in Scotland have signing powers for warrants and others do not. At present, both sheriffs and JPs can sign some warrants, although I heard the arguments against JPs doing so. I will have to return to that on Report, because we are still holding talks with the Scottish Executive.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The Minister should look at page 17, line 25, which reads:

''On an application made by the Commissioner a justice of the peace may''.

There are then references to a justice of the peace throughout that clause. Justices of the peace in England, Wales and Scotland are not legally qualified. I understand the arguments made by the hon. Member for Winchester, but if the Minister accepts them with alacrity, she may end up producing a different approach for Scotland from that in England and Wales. That does not matter as long as she knows that that is what she is doing. A justice of the peace in England is not a ''district judge (magistrates courts)''—what we used to call a stipendiary magistrate—who is legally qualified. Before she gets too overexcited by the hon.

Gentleman's points, she should understand what happens if one thing is taken away and not replaced by another.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

We must do something precisely because we have a different system and we do not have sheriffs. I was careful to say that I am not sure that I will come back with an amendment in the proposed form, because we need equivalence in the level in the judicial system at which the decision to sign a warrant is made. All those issues, not just in Scotland but in England and Wales, need to be balanced. I am not in a position to say what the conclusion of those discussions and the evaluation will be. I would therefore be grateful if the hon. Gentleman would withdraw the amendment, because I need to return on Report with our considerations of that matter and of some other matters related to Scotland.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I am grateful for the Minister's co-operation on that other issue related to the previous clause and look forward to those important points being taken into account. Given the reassurance that we have been given that the drafting team will re-examine the issue, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I beg to move amendment No. 147, in

clause 16, page 18, line 24, at end insert—

'(9) In the application of this section to Northern Ireland the reference to the Police and Criminal Evidence Act 1984 (c.60) shall be taken as a reference to the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).'' '.

The amendment is technical, and relates to the commissioner's power to seize and retain

''material subject to legal privilege, excluded material or special procedure material.''

In England and Wales, those categories of material are defined in relation to the Police and Criminal Evidence Act 1984. The amendment provides that the definition of such material in relation to Northern Ireland is contained in the Police and Criminal Evidence (Northern Ireland) Order 1989. It is another measure for which similar provisions will have to be made for Scotland. That will form part of our discussions with colleagues in the Scottish Executive; I may need to introduce a further provision on Report to cover the Scottish situation.

Amendment agreed to.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I beg to move amendment No. 148, in

clause 16, page 18, line 24, at end insert—

'(2) In paragraph 7 of Schedule 5 to the Immigration and Asylum Act 1999 (c.33) (investigation of complaints, &c.:power of entry)—

(a) in sub-paragraph (1)(b) after ''(b)'' insert '', (c)'',

(b) in sub-paragraph (1)(c) for ''registered person.''substitute ''registered or exempt person.'',

(c) in sub-paragraph (1A)(a) after ''(b)'' insert '', (c)'',

(d) in sub-paragraph (1A)(b) for ''registered person.''substitute ''registered or exempt person.'',and

(e) after sub-paragraph (8) insert—

''(9) Sub-paragraphs (7) and (8) shall apply to an exempt person as they apply to a registered person, but with a

reference to cancellation of registration being treated as a reference to withdrawal of exemption.

(10) In this paragraph ''exempt person'' means a person certified by the Commissioner as exempt under section 84(4)(a).'' '.

As we have heard, the clause gives powers of entry, search and seizure to the commissioner. The amendment will ensure that the commissioner can exercise those powers to enter premises in respect of exempted advisers as well as the registered advisers that are included in the clause as currently formulated. Exempted advisers are exempted from the fee that they would otherwise have to pay the commissioner, because they operate on a voluntary basis. Unlike registered advisers, they do not provide immigration services in the course of a business, and therefore do not pay the fee. Nevertheless, in terms of the quality of advice that they give to their clients, it is just as important that the commissioner can use his power in relation to them. It is important that we treat those advisers equivalently.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I want to be absolutely sure that the category of exempt advisers does not include elected representatives and their staff.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I can safely assure the hon. Gentleman that that is the case, although I will check it. I hope that, with that clarification, hon. Members will support the amendment.

Amendment agreed to.

Clause 16, as amended, ordered to stand part of the Bill.