Clause 2

UK Borders Bill – in a Public Bill Committee at 12:30 pm on 6th March 2007.

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Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I beg to move amendment No. 20, in clause 2, page 1, line 14, after ‘individual’, insert ‘on an immigration or nationality matter’.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to discuss amendment

No. 26, in clause 2, page 2, line 16, at end add—

‘(6) For the purposes of this section, “an immigration or nationality matter” means an offence under the Immigration Acts.’.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I am delighted that we have raced on to clause 2 in two hours. I speak with feeling from my personal history of sitting on Bill Committees. When I was a member of the Opposition team on the Committee considering the National Minimum Wage Act 1998, we did not finish clause 1 until the end of the third day, at which point relationships in the usual channels rather broke down and the Government Whip introduced a 26-hour sitting, which we all, not least the Chairman, had to endure. I am therefore particularly pleased that we are making better progress on this Bill, not least because that 26-hour sitting was followed by a 19-hour sitting, during which Conservative Members spoke against a policy that my party sensibly adopted two years later. That was not the greatest ever use of time.

Moving swiftly on to the amendments, having considered the designated officers, we now turn to the key issue of the extra detention powers that they will be given and, in particular, the times at which they can exercise them. The amendments would limit the immigration officer’s power of detention to use against those whom he suspects of specifically transgressing the law on immigration or nationality issues. Like clause 1, clause 2 is widely drafted. It gives immigration officers the power to detain anyone whom they suspect of having committed an offence or who is subject to an arrest warrant, which gives the officers wide powers that go well beyond immigration matters.

Amendment No. 26 would restrict the definition of immigration and nationality matters to offences under immigration legislation. The amendments seek to ensure that people know that immigration officers are using their extra powers within their capacity as immigration officers, and there are a number of reasons why that is desirable. We discussed training under clause 1. If immigration officers have powers effectively to act as police officers as far as the public are concerned, which is to say that they are capable of detaining people for offences that have nothing to do with immigration, they need to be as well trained and accountable as police officers. I do think that anyone has claimed that that will be the case, for all the welcome assurances about clause 1 which we have been given.

We have already discussed the good job that immigration officers do, but if they are to continue to do that job to the best of their ability, they need to be properly focused on it. If their focus is diffused, it is likely that they will be unable to do their job as effectively as they have in recent years. In his closing remarks about clause 1, the Minister introduced the subject of a border police force, which I imagine that we will discuss throughout our debates and certainly when we reach the new clauses. However, it seems slightly perverse that he has set his face so firmly against that force and yet is trying to move towards it in small ways. For example, the extra powers that he is giving to immigration officers to make them a little more like a border police force are not accompanied by the appropriate guidance, which they would receive if they were full police officers.

I hope that the Minister paid attention to the remarks on this matter by Gareth Crossman of Liberty. The amendments seek to address what Gareth Crossman described as a general trend towards the devolution

“of what are essentially policing powers towards non-policing agencies, in this case towards immigration officers.”——[Official Report, UK Borders Public Bill Committee, 1 March 2007; c. 118.]

He also pointed out that

“The Serious Organised Crime and Police Act 2005 contained provisions that specifically set out the carrying out of arrest functions by non-policing bodies.”——[Official Report, UK Borders Public Bill Committee, 1 March 2007; c. 118.]

That is a development worthy of debate in itself. If we are—as we are—going through a phase in which society and the streets are becoming more violent, clearly we need to be extremely sensitive about the powers that the authorities, whether they are the police or other authorities, have to combat that growing  violence, because those powers are likely to have to be used more often. Equally, when it comes to passing legislation, we must be careful that it is properly focused.

Liberty itself made the point that there is an argument that immigration officers should be able to exercise these powers, but if they are to do so, then it is worth remembering one of the better traditions that we have in this country. It is the tradition, as Gareth Crossman put it,

“of having an accountable, properly trained police force.”——[Official Report, UK Borders Public Bill Committee, 1 March 2007; c. 118.]

We all accept that the police have exceptional powers, but equally we accept that there needs to be proper accountability for the police. We know what the police are supposed to be doing and whether a police constable is exercising them well or not. If people were to turn their attention to immigration officers, they would find it entirely acceptable that immigration officers should have a set of powers that are quite large: that they can detain people; that they can question people; and that they can intrude into people’s personal lives. People will regard that as completely acceptable, as long as the immigration officer is pursuing their duty as an immigration officer. I suspect that the officers themselves would welcome clarification. They want to know that what they are doing is not only formally correct—that is, correct de jure—but that it would be correct in the view of the people against whom they will exercise their powers. The principal reason for these amendments is to ensure that that is the case.

We will come, no doubt, to inspection arrangements in future debates. However, the principle itself is well worth discussing; namely, that if we give extensive powers to officers, then the people against whom they will exercise those powers should know that those powers are being exercised properly. On the surface, it does not seem obvious that an immigration officer using powers of detention, and so on, against someone they suspect of having committed an offence that may have nothing to do with immigration is acting correctly; the immigration officer may well be worried that that is, in some ways, improper and they can be pretty sure that the person against whom they are exercising those powers will think that it is improper. Therein lies the potential not only for difficulties, but for active danger. People are more likely to react unpleasantly and possibly violently if they feel that powers are being used against them in an improper way, even if they will be entirely legal, if this Bill is passed.

These are serious concerns about the day-to-day activities that immigration officers will have to carry out if clause 2 is passed, and I hope the Minister will address the amendments with the seriousness with which they were tabled.

Photo of Paul Rowen Paul Rowen Shadow Minister, Transport

During the course of our debate on clause 1 and the amendment which I put forward on the PACE regulations, the Minister said that the use of the PACE regulations was perhaps not inappropriate because the powers that were being designated to immigration officers were not those of police officers.

The concern I have with this particular amendment is that it does just that. As the hon. Member for  Ashford has said, we are considerably widening the powers of detention for immigration officers. That might be appropriate in the context of the wider debate, which we may have, on a UK border force. Given that the Minister and the Government have set their face against that, however, what we are in danger of here is legislative creep in the sense that we are giving an officer new powers and then we are broadening the powers and the framework in which those powers can be used.

My view is that it would be far preferable if immigration officers were subject to the PACE regulations to allow them to receive the full gamut of training required to undertake those powers and to be aware of the effects of what they are seeking to enforce. At the moment, an immigration and nationality officer is just that. The training they have received is primarily to do with immigration and nationality.

Photo of David Davies David Davies Conservative, Monmouth

The hon. Gentleman appears to be arguing against the powers in clause 2 because of the principle of what he has described as “legislative creep”. Is that not rather an interesting principle, which we would not want to apply if immigration officers have somebody in front of them who is wanted on a serious offence. Surely we should expect that those immigration officers should use their power and their presence to detain that person until an officer arrives, otherwise people wanted for offences as serious as murder or robbery could literally be allowed to walk away.

Photo of Paul Rowen Paul Rowen Shadow Minister, Transport

I am sympathetic to what the hon. Gentleman has said and have not argued that officers should not be able to do that. My point is that we are not only talking about what happens to the person who is detained, because we also have a duty and a responsibility to think about how these new powers will affect the officer concerned. It is important that when an officer is given powers, they should receive the appropriate training and be subject to the appropriate codes of practice for the powers that they are going to exercise.

The PACE regulations were introduced to give the police and police officers the certainty that they have the protection of the law in carrying out their duties. My concern is that clause 2 is all-embracing and wide-reaching, which may be a good thing. The hon. Member for Ashford and I agree that we would rather discuss a UK border force than the narrow addition that we have been talking about.

However, given how the Bill is, we need to ensure, for the sake of consistency and the protection of officers, that it defines the powers so that the relevant officer and the person being detained know what they are. If we do not do that, at some future date we will face challenges in the courts because of the exercise of unreasonable powers by someone who does not have training in, or an understanding of, the use of the powers. Given clause 1, our debate on it and the Minister’s response, the amendment is sensible, notwithstanding the fact that we may later broaden the powers and establish a much more encompassing system at our borders.

Photo of James Clappison James Clappison Conservative, Hertsmere 12:45 pm, 6th March 2007

My hon. Friend the Member for Ashford properly seeks to ascertain the extent of the powers that we are giving immigration officers. I have one question for the Minister about the reference to Northern Ireland in subsection (1)(a). We do not have a Northern Ireland Member on this Committee, so it is proper to ask the Minister to say a few words about that reference. The explanatory notes refer to

“the equivalent powers in Northern Ireland”,

but say no more than that. Will he explain whether the Bill covers any offences particular to Northern Ireland, as opposed to those in the rest of the country? Will he spell out exactly how much more is covered by virtue of the specific reference to Northern Ireland?

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality)

I have followed the debate with interest, but also, I am afraid, with a sense of growing puzzlement and the first signs of alarm.

The amendment would effectively limit the powers that we propose for immigration officers simply to immigration and nationality offences. Frankly, those are not massively different from the powers that they already have. The amendment would undermine the rationale for this entire group of clauses. If we accept that the pressure on our borders may not diminish but grow in years to come, and that the security situation that we confront today may be with us for some time, it is important for us to bring forward measures that give the opportunity for immigration officers not to supplant the police but TO support them more considerably than they can today, given the powers that Parliament has granted them.

The first signs of alarm come from what is beginning to look like a pattern of behaviour. As I said, now that we have dramatically increased the number of immigration officers—by about threefold—it is surely important to ensure that they have the tools and powers to do the job. Critical among the tools must be systems that allow us to pin down people’s identities. It does not matter who stands at the immigration control desk; if we are unable to pin down the identity of the person presenting themselves, it will be harder than it should be for an immigration officer to do their job. That is why we propose systems such as biometric visas and why we shall later, I hope, come to a full debate about compulsory ID cards for foreign nationals. Surely, in an age of global movement when links between communities are much weaker than they were and people move around much faster, it is more important, rather than less, to be able to pin down and ascertain somebody’s identity. Opposition parties propose to remove those tools and not to allow security services, police and immigration officers access to the kind of technology that is available. The amendment does not propose to take away tools, but to take away powers. My fear is that it is part of a pattern of argument that points towards a much more toothless immigration service that will be less, rather than more, able to secure our borders.

I want to build on an argument made by the hon. Member for Monmouth, which involves a case where a British national appears in front of an immigration officer who has reason to suspect that the British national is liable to arrest. Is that an unusual scenario? No, it is not. It may become increasingly common in the future. I mentioned a system of electronic database  checks that is now in place. It covers 20.9 million flights in and out of the country and 38 carriers operating from 71 non-UK ports. That system allows us to check the names of those people who check in against a range of Government databases and to flag alerts, some 9,000 of which have been flagged so far, resulting in 800 arrests. We made it clear in the IND review, which my right hon. Friend the Home Secretary published last July, that we intend to roll out the system further. We want to use it to count people in and out of the country, which is an ambition that I know that Members from all parties share, but it allows us, too, to run names against a series of database checks. Scenarios such as those outlined by the hon. Gentleman might multiply in the future.

Photo of David Davies David Davies Conservative, Monmouth

The Minister is talking about an interesting idea, which is that passenger lists can be cross-checked with the police national computer to find anyone who might be wanted for serious offences. Has he considered extending it further and cross-checking with the Department for Work and Pensions to see how many people are flying out of the country while in receipt of jobseeker’s allowance or other benefits, as that would imply that they are not seeking work as assiduously as one might hope?

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality)

An excellent point, about which we will hear considerably more over the course of this week. I hope that by the time we meet on Thursday I shall have considerably more to say to the hon. Gentleman on that point.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I can well understand that working in the Home Office one gets pessimistic, but I suspect that the Minister is being unduly pessimistic in his portrait of my motives and those of my hon. Friends. These are merely probing amendments, because we think that the provisions are sufficiently lax to open up a can of worms later. The intimation in the Minister’s remarks is that he supports profiling at points of entry into the UK. Is that his contention?

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality)

Profiling is a word that is often used and misused, and so I am happy to engage in a debate about what precise definition the hon. Gentleman proposes. The truth is that database technology allows us to undertake risk assessments on particular flights, which can guide decisions about the number of immigration officers and whether they meet the plane at the gate rather than at the immigration desk, for example. Such a risk assessment becomes more possible with systems such as the one that we are using.

The scenario I wanted to paint in respect of the point made by the hon. Member for Monmouth was that of a flight that arrives at an airport in the UK. At immigration control a British national is identified as being the subject of a warrant for arrest for an offence such as grievous bodily harm. As that person is a British citizen, the immigration officer does not have the power of arrest under section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. He is therefore unable to support the police, not supplant them, by detaining the individual and  summoning a police constable to perform the arrest and conduct substantive inquiries. That scenario concerns me, as I believe it concerns the hon. Gentleman. With the roll-out of the e-borders system, such scenarios will not diminish but multiply in years to come.

The hon. Member for Rochdale made an important point about PACE. I return to the distinction that I drew between the powers that we propose in the Bill for immigration officers and the responsibilities and powers of a constable. We have been careful in the powers that we have sought for immigration officers. We have sought to give them the power to detain and said that there will be an obligation to summon a constable as soon as is reasonably practicable, and we have set a limit of three hours on the detention possible.

The difference between the powers of a constable and those of an immigration officer in the situation in question is important, because a constable will undertake the responsibilities of questioning, arrest, investigation and the collection of specific evidence. Those responsibilities are all appropriately covered by PACE and the police have to put in place a comprehensive infrastructure to exercise them. I mentioned recording facilities. I do not believe that it would be a proportionate use of PACE to extend its scope to encompass the responsibilities and powers of immigration officers that we are setting out in the Bill. It would entail substantial investment, probably on the part of ports, most of which are operated in the private sector, to provide PACE-like facilities at ports up and down the country.

That said, is it important to ensure that adequate training is provided for immigration officers to conduct and execute the powers in the Bill? Yes, of course, and that is why we had the debate on clause 1. Is it important that there is scrutiny and oversight? Yes it is, and that is why I set out that there will be the triple check—Her Majesty’s chief inspector of prisons, independent monitoring boards and the prison and probation services—covering detention facilities on the one hand and the new single regulator on the other. It is why we believe that there may well be immigration functions that it is important for the IPCC to cover and why we introduced section 24 of the 2006 Act. It is why we will conduct a public consultation on precisely which functions performed by the immigration service it is appropriate for the IPCC to cover. I am concerned that the amendment would not strengthen the immigration services; I believe that it would weaken it.

I ask for the indulgence of the hon. Member for Hertsmere and ask whether I can write to him, detailing at some length the Northern Ireland provisions.

Photo of James Clappison James Clappison Conservative, Hertsmere

I am grateful to the Minister for that response, and I am satisfied with it. To clarify the point that I wish to establish, what is being covered in respect of Northern Ireland that will not be covered for the rest of the UK?

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality)

I am grateful to the hon. Gentleman for that clarification.

The amendment might not take us forward and might instead take us backward. I understand perfectly the real tenor of its purpose—to explore whether sufficient oversight arrangements will be in place for us to ask for, and exercise, the power in question. I believe that there will be. I accept that Opposition Members will not be completely satisfied on that point until we have had our debate on the single regulator, but with that ahead of us I hope that the hon. Member for Ashford will withdraw the amendment.

Photo of Damian Green Damian Green Shadow Minister (Home Affairs)

I am sorry that the Minister has said that he is beginning to be alarmed. I am sorry if I have alarmed him. By contrast, his response rather cheered me up. The substantive part of his response—

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o’clock.