Clause 2

UK Borders Bill – in a Public Bill Committee on 6th March 2007.

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Detention

Amendment proposed [this day]: No. 20, in clause 2, page 1, line 14, after ‘individual’, insert ‘on an immigration or nationality matter’.—[Damian Green.]

Question again proposed, That the amendment be made.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

I remind the Committee that 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 repeat the new welcome that we decided to give to the Chairman, Mr. Amess, as we move on to the traditional phase of the Committee.

The Minister said this morning that I was alarming him with this group of amendments, to which I responded that he had cheered me up with his response to it. That is because in addressing the powers that he wanted immigration officers to have, in particular the necessity for the powers to extend beyond immigration matters and offences under the immigration Acts, he made an extremely cogent case for having a border police force standing at the border as our first line of defence. I can guarantee that I will hear quotes from what he said this morning coming from my own lips in the months to come as the debate continues.

In the wider scheme of things, the Minister is right. There will be people of criminal intent coming through our borders. There already are, and we want people there with the training, capability and specialist skills to enable them to be even more effective than our current immigration officers. The Government implicitly agree that the current controls at the border are not effective enough; otherwise, they would not propose in the early clauses of the Bill that the immigration officers should have extended powers. We accept that and we are glad that the Government admit it. The difference between us is simply that we wish to make the measures more all-embracing and coherent. I am sure that we shall return to that issue later.

The Minister’s other arguments were less strong. It seems to me perfectly sensible—I do not know why he is alarmed—that, as long as we have immigration officers, they should be focused on immigration matters. That is part of the problem with having officers with immigration  officer powers at the border. He has made a cogent case, one that we wish to argue in the later clauses of the Bill, and in those circumstances it would be churlish of me not to withdraw the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Davies David Davies Conservative, Monmouth

I beg to move amendment No. 1, in clause 2, page 2, line 8, leave out ‘three’ and insert ‘24’.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss amendment No. 38, in clause 2, page 2, line 8, leave out ‘three’ and insert ‘eight’.

Photo of David Davies David Davies Conservative, Monmouth

This Bill Committee has been an interesting experience for me. It is one of the first that I have served on, so I tread warily. I have noticed a bit of consensus on some of the general principles, one of which is allowing immigration officers to detain people under certain circumstances. I question whether three hours is long enough for an immigration officer to detain someone. In a busy port such as Heathrow or Gatwick, a police officer will be on the spot within minutes or seconds if they are not already there, so it will not be an issue in the places that we tend to think of; but in other ports there is not always a 24-hour police presence.

I am concerned that if the situation that we discussed were to arise, in which it became apparent to an immigration officer that somebody before them was wanted by the police, whether under warrant or in other circumstances, it might take longer than three hours for a police officer to arrive. The police tend to be fairly reactive; they are not always present in the numbers that we would like. I speak from experience as a currently sworn-in special constable. I imagine that in most cases three hours would be long enough, but I can envisage circumstances, in a remote area with police already out on various calls, in which it would not be. Therefore, I tabled an amendment that “three hours” be replaced by “24 hours”, on the basis that that would make absolutely certain that under no circumstances would somebody who was wanted for a serious offence escape.

However, I am open to suggestions on the amendment. My hon. Friend the Member for Ashford has spoken eloquently and sagaciously on many matters relating to the Bill, and he has suggested that eight hours, rather than 24, might be enough. I am open to persuasion on that point. I merely question whether three hours is enough and I hope that, given the consensus that we are starting to see on some measures in the Bill, the Government would also agree that three hours might be insufficient time in certain circumstances.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

Is my hon. Friend aware of the findings of the Select Committee on Home Affairs in 2001 in its report, “Border Controls”, which specifically draw attention to the weaknesses of the current situation, specifically the lack of a coherent, statutory border agency? The Committee said that there was a lack of access to other agencies’ databases and that some officers on duty did not have full powers to carry out necessary border control functions on behalf  of others. Would that situation not be remedied by the ability to hold people for longer, perhaps across duty rosters?

Photo of David Davies David Davies Conservative, Monmouth

My hon. Friend makes an important point. Of course, there is one other matter that should be addressed, and that is that the longer somebody is held by an immigration officer, the more likely it is that something may arise that could cause that person to make a claim—vexatious or otherwise—against the immigration and nationality directorate. That is why I was absolutely delighted when the Minister said, about a week ago, that he would shortly provide me with details on the amount of compensation that has already been paid out by the IND. I tabled the written question almost a year ago, and I thought that my staff and I would have to hold a birthday party for it, as it is yet to be answered. I look forward to seeing the details very shortly.

Photo of James Clappison James Clappison Conservative, Hertsmere

I congratulate my hon. Friend on tabling the amendment; he has raised an important subject and I am sympathetic to the arguments that he has advanced.

The onus is on the Minister to explain to us the genesis of the period of three hours. I note, for a start, that that is a maximum period. Looking at the Bill, it is obviously hoped that the police will come as soon as possible and take into their detention the person who has been detained by the immigration officers. However, I wonder why we need to have a maximum period of three hours. The Minister must explain where this period of three hours came from. Did it come from the Police and Criminal Evidence Act 1984, in order to align the powers of immigration officers with those of police officers? Did it come about as a result of consultation? Where exactly has the period of three hours come from, bearing in mind that it is a maximum figure and one would naturally want to give immigration officers as much flexibility as is reasonable in such circumstances? Obviously, balances must be struck, but if we are designating immigration officers, training them and, as was described this morning, going to all the trouble that we are going to—apparently rightly—one would ask why this limit of three hours has been set. Perhaps the Minister would also explain what will happen if immigration officers hold a person for three hours and a police officer is not able to attend within that period of three hours. We all know about the many demands that are made on the police these days, so we need to hear from the Minister as to what would happen in such circumstances. The onus is on the Minister to explain where the figure of three hours comes from.

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

I shall speak to amendment No. 38. I was pleased when my hon. Friend the Member for Monmouth said that he was persuadable, as it is difficult enough to persuade Ministers to accept amendments without the added problem of trying to persuade my hon. Friends to accept them.

Fundamentally, we seek to achieve the same two things: first, to probe and question the Minister as to why three hours is the correct maximum time to allow for detention by immigration officers, and secondly to suggest alternatives—24 hours in my hon. Friend’s case and eight in mine.

The points that have been made are valid and it is worth exploring what will happen in practice, particularly at smaller ports. The Minister will be as aware as anyone that in the criminal underworld that is involved with illegal immigration, trafficking and so on, it is a given that it is easier to get people into the country through smaller ports and airports than through Heathrow, Waterloo or Gatwick—the big centres through which most people go, which have more people and often newer technology. Given that, it seems overwhelmingly likely that, particularly in some of the more remote ports, a period longer than three hours will be necessary, not least in the perfectly plausible circumstance of many people who need to be detained arriving at once. That sort of thing would rapidly become known about and if it happened once, it would happen again. The people traffickers and smugglers would know that it was what to aim for.

A lot of my complaints about the Bill and a lot of my amendments are attempts to put something concrete in the Bill so that not too much is left to regulations that we have not yet seen and that Parliament therefore cannot scrutinise properly. I am puzzled as to why, in one of the few parts of the Bill in which the Government commit themselves to something—the limit of three hours—it does not seem adequate to perform the function, which the Minister and all of us on the Committee want it to perform, of allowing the designated immigration officers to do their job properly. I agree with my hon. Friend the Member for Hertsmere that during the various consultations on the Bill and in the course of the debates on it in the House, we have had no sensible indication of why a period of three hours was chosen.

It is not just a case of there being fewer immigration officers in the more distant and smaller ports; the local police forces in such areas are likely to be more stretched. To continue my litany of plausible examples, it would not be too difficult for somebody who was organising a major people-smuggling operation also to organise a normal criminal incident that would call away large numbers of the local police so that there could not be anyone available within the three hours. The provision would therefore not work. An equally likely scenario is that a large number of suspects would be detained and all be awaiting the attention of one constable, or maybe two, at the same time.

I hope that the Minister will not use the argument that he does not want suspects to be detained for too long. He and I might not have participated from the Front Benches in the debates in question, but our colleagues have participated in many debates in the past 12 months in which, by and large, we have been less keen than the Government on locking people up without charge for long periods. I know that the Minister would like to lock people up for 90 days, but we have managed to keep that down to 28 days so far. I urge him not to use a civil liberties argument about the difference between locking someone up for three hours and doing so for eight hours, as that would be inconsistent with everything that the Government have argued in this field in recent years.

I hope that the Minister will reconsider the matter. He must convince the Committee that a three-hour period is a practical solution, but it does not seem so to  me. There will be a range of views on what the practical solution might be but, frankly, three hours seems too short.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley 4:45 pm, 6th March 2007

I shall perhaps take a slightly different angle. We are considering a power of arrest without even reasonable suspicion. When a constable arrests somebody there has to be a reasonable suspicion. In this instance it is just on the basis of what someone thinks, regardless of whether there are reasons.

Photo of David Davies David Davies Conservative, Monmouth

When a constable stops somebody he will often run a check on that person on the police national computer and if that check comes up as “wanted on warrant” he will arrest that person. From what I can understand, the Minister has said that something similar would happen in an airport. The details will be put through and if the information comes back “wanted on warrant” the immigration officer will make an arrest. What does he think is different about that?

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

The words in statute are important. The words used for constables are “reasonable suspicion”. Here it is “thinks”. That does not require reasons. They may just “think”. There is an important distinction there. Which way should it be or how many hours should apply? There are circumstances where immigration officers would need to arrest somebody and await a constable. It would be concerning if, having dialled 999, one had to wait eight hours or 24 hours, but I am very interested to hear the Minister’s response on this because our responsibility is also to protect people against the arbitrary use of state power; and here we are giving someone potentially, according to amendment No. 1, the arbitrary power to arrest somebody for 24 hours without even a reasonable suspicion. That is obviously something that we should not do.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

Not that long ago, the Government sought to do the same for 90 days—90 times as long. But that is a different issue and I will not go down that particular avenue.

I have a question for the Minister; I would appreciate a straightforward answer, which I am sure I will get. It seems to me that the question is, why do we have to have these powers exercised as standardised powers? As I understand it, they arise from section 24A of the Police and Criminal Evidence Act 1984, as amended by the Serious Organised Crime and Police Act 2005. My understanding is that the standardisation of the arrest powers are similar to those for a police community support officer. My question is, given the significant threat that the Home Secretary and his Ministers have mentioned over many months—the volume of people trafficking and other issues—why are these powers so limited and why are the Government not willing to be a little flexible on this vital issue?

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

May I add my words of welcome, Mr. Amess, and say how glad I am to serve under the constitutional normality of your chairmanship this afternoon? I look forward to the rest of the day.

The hon. Member for Ashford is very wise to adopt the tone that he has struck in relation to his hon. Friends. There was a very memorable interventionby the hon. Member for Monmouth from his own Front Bench during the course of Second Reading. I know that the process of accountability within the Conservative party is robust and strong, as it is on this side of the House. The hon. Member for Ashford is well advised to strike the pose that he has this afternoon.

May I start with a puzzle that was working through my mind as I listened to the valuable contributions to the debate on this amendment? In the amendment that has just passed we had an interesting debate about how we should be seeking to strip powers from immigration officers and link, for example, their power to detain people to people who might be suspects in offences relating to immigration and nationality. Now we are veering the other way and asking whether it would be more appropriate to take a different path altogether and dramatically extend some of those powers.

Let me try to pick up a few of those arguments. If I can offer one word of reassurance to the hon. Member for Ashford, I will not be deploying any of the arguments posed by Liberty in its briefing and I should be grateful if he would pick me up if I start veering towards that difficult terrain.

I start with the contribution of the hon. Member for Birmingham, Yardley. It is not without precedent to equip those working with or for the immigration service with the power to detain people. In the debates on the Immigration, Asylum and Nationality Act 2006, especially on sections 40 and 41, we discussed whether it would be appropriate for authorised search officers to be provided with the power to detain people pending the arrival of an immigration officer. The Liberal Democrats’ position was to oppose it. There is a parliamentary precedent; whether a period of three hours is a good or a bad thing has had the scrutiny of the House.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

I am not disputing whether there is a substantial argument for having a temporary power of detention from time to time. My point is that the Bill does not state that there need to be reasons to believe; the word in the clause is “thinks”. It is a technical point.

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

I am grateful for that clarification. This morning we discussed some important points of detail that are germane to the arguments advanced by the hon. Gentleman. First, we are not asking for the power of arrest with regard to British citizens, which picks up some of the points made by the hon. Member for Peterborough. These are not arrest powers; they are powers of detention pending the arrival of a constable.

We had a long debate about the period of three hours. I have some sympathy with the hon. Members for Monmouth and for Peterborough because the position that the former outlined in his amendment was precisely my starting point in the debates during the development of the Bill. My original instinct was to seek quite wide powers of detention. Two or three arguments were deployed to persuade me that three hours was the right approach. First, it was argued that  if we were to propose a period of three hours and posit it being extended to eight hours or 24 hours, we would quickly encounter an argument that the protections we proposed in the Bill would be inappropriate, because to detain someone for 24 hours would be tantamount to arresting them.

If we were to equip immigration officers with that kind of power, the House would rightly ask for the PACE protections that are in place for police officers to be brought into being for immigration officers in exercising the powers in the Bill. As I said earlier, that would entail the implementation of a different regulatory regime and require ports up and down the country to invest, potentially substantially, in providing PACE facilities. I thought that that was a reasonable argument.

The contribution that persuaded me, however, was the view of the police and the immigration service. The evidence given last week by Tony Smith, director of border control, was helpful. The subject has been debated to some extent; we already bring together those agencies that are responsible for providing border security in a group called the border management programme. We are lucky to have an excellent representative from the police on that board. It was the view of the Association of Chief Police Officers and the immigration service that three hours was about right. When I am given such clear arguments by the immigration service and the police, I think I should listen to them.

In practice, we see three hours as the outer limit. We make it clear in the Bill that there is an obligation on immigration officers to summon a police constable as soon as is reasonably practical because the police are able to exercise the power of arrest, conduct investigations and so on.

At three hours, we are setting a time that we believe is about right, and it has the support of the police,the Association of Chief Police Officers and the immigration service. On the basis of the advice given to me, I was persuaded. I hope that I have persuaded the Committee to the extent that it will see fit to allow the amendment to be withdrawn.

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

I am not convinced by the Minister’s argument, because there was no argument. He said that he started at 24 hours—a splendid consensus between my hon. Friend the Member for Monmouth and the Minister, which I am sure we all note and cherish. He was then persuaded to come down to three hours by ACPO and the immigration service. That is interesting. However, he gave us none of the arguments that ACPO and the immigration service had used on him. It was an old-fashioned appeal to authority rather than a rational argument. The arguments of ACPO and the immigration service may have been fantastically convincing, but none of them have been shared with the Committee, so we are no further forward than before the Minister started speaking.

The Minister made the reasonable point that some of our amendments this morning would have reduced the power—and, he suggested, the effectiveness—of immigration officers, and he rejected them on those grounds. We are now trying to make immigration officers more effective, and he is rejecting that, too—and, frankly, with not much rational argument. I urge him to consider  the matter again, because various Opposition Members set out perfectly plausible scenarios in which three hours would not be enough.

I am sure that none of us wants to read in the newspapers in years to come of people being held at ports who had to be released because a police constable was not available. The Minister will be more aware than anyone of the current spate of newspaper stories about illegal immigrants being caught by the police and put on trains, or let go in some other way, with the injunction, “Please go and report to the nearest immigration reporting centre.” And—surprise, surprise—few of them turn up. One can see that the Bill might easily lead to a repetition of that sort of embarrassing disaster for the Government.

I urge the Minister to reconsider the matter. We are trying to help him avoid an obvious elephant trap.

Photo of Paul Rowen Paul Rowen Shadow Minister, Transport

May I apologise, Mr. Amess, for missing the start of the sitting? I had to attend my Select Committee in order to raise a question.

My party does not support the amendment. We believe, as the Minister suggests, that the powers of a three-hour limit are more than adequate given that we are asking immigration officers only to detain someone and then call the police. On most occasions, the police will be on site and will arrive fairly speedily. I cannot envisage a situation in which an immigration officer will detain someone for longer than that; we are not talking about such people being questioned or interrogated.

The provision is designed primarily to deal with the al-Qaeda suspect who leaves the country in a burqa. If an immigration officer suspects someone of attempting to slip out of the country, this power will allow them to be detained. That is right and proper. If we go beyond three hours, we come back to the earlier argument about whether we should have a border force or whether we should continue to have a separate police force and immigration service. I might agree that a border force would be more effective, but that is not what we are discussing. Given that we are dealing with a very narrow clause about the powers of designated immigration officers, three hours is more than adequate.

Photo of Liam Byrne Liam Byrne Minister of State (Home Office) (Immigration, Citizenship and Nationality) 5:00 pm, 6th March 2007

I am grateful to the hon. Member for Ashford for having pointed out the elephant traps. In trying to steer my way around them, I shall listen to him with ever greater care over the days, if not weeks and months, to come. He rightly characterised my argument as an appeal to authority, which it is.

We often hear protracted arguments from Opposition Members about why Ministers should trust front-line professionals more. In my previous role as a social care Minister, I often listened to the hon. Member for South Cambridgeshire (Mr. Lansley) talking at great length about why Ministers should prescribe less and listen harder and in greater detail to front-line professionals, and there is some merit in a critique that says that Ministers should not try to prescribe operational activity to the nth degree. This morning, we celebrated at some length the contribution that our immigration officers make to our border security, and their reputation for professionalism is well justified.

On the one hand, the immigration service and ACPO have both argued that any extension of the power of immigration officers to detain individuals for longer than three hours would be to creep towards a power that is tantamount to the power of arrest. That would, rightly, trigger calls for PACE-like protection and investment by ports in PACE facilities. On the other hand, it is legitimate to ask whether a constable can be summoned within three hours. On that, I defer to the judgment of colleagues in the police forces, who understand what we are trying to do and the capabilities that we are trying to put in place at the border.

We have been extremely grateful for the input of the police in programmes such as e-borders. Just outside Heathrow, at Status park, we have a very successful joint-working operation involving Her Majesty’s Revenue and Customs, special branch, the police and the immigration service that processes the data that we screen from flights. Even in the short history of that operation, those data, which we talked about this morning, have provided some 8,000 or 9,000 alerts and resulted in some 800 arrests. The police are very familiar with the kind of capability that we are putting in place. In ACPO’s judgment, where immigration officers exercise their powers of detention at the border, three hours is adequate to summon a police constable. In fact, if anything, that is the outer limit.

Therefore, my appeal is to authority. If the police tell me that they are confident that they can work within the power, I accept their judgment.

Photo of James Clappison James Clappison Conservative, Hertsmere

I have heard the Minister’s explanation, which I know that I asked for. Is he telling us that the police are confident that they can get there in every case, bearing in mind that that is a maximum? Can he answer the question that I put to him earlier about what will happen in the case of a suspect who is dressed in a burqa, or, as the hon. Member for Rochdale has suggested, something of that nature, and the police cannot get there within three hours? What will be the legal position?

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

As the law stands, an immigration officer would be in breach of the law if he were to detain somebody for longer than three hours, which is why I needed persuading that three hours is long enough. However, I accept the representations from ACPO that three hours is the right margin within which an immigration officer should seek to summon a police constable to conduct an arrest or investigation.

Photo of David Davies David Davies Conservative, Monmouth

You will know, Mr. Amess, that I am renowned for my moderation and for seeking a third way whenever there is one. Having listened to the excellent contributions by the Minister and my hon. Friend the Member for Ashford, whom I admire greatly, from the Front Bench, I have come to the conclusion that perhaps there is a happy medium. A third way would be for me to withdraw my amendment suggesting 24 hours and for all of us who believe that we should do our utmost to prevent terrorists or other criminals escaping the clutches of immigration officers to support my hon. Friend’s amendment of eight hours.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

Order. I am trying not to sound pompous, but it is usual that if a Member has tabled an amendment that is not the lead amendment, when they speak, as in Mr. Green’s case, they should indicate to the Chair that they might press their amendment. However, on this occasion we will proceed.

Photo of David Davies David Davies Conservative, Monmouth

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed, No. 38, in clause 2, page 2,line 8, leave out ‘three’ and insert ‘eight’.—[Damian Green.]

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 10.

Division number 3 Nimrod Review — Statement — Clause 2

Aye: 4 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment No. 39, in clause 2, page 2, line 13, leave out ‘designated’.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss amendment

No. 40, in clause 2, page 2, line 15, at end insert—

‘(aa) detain the individual for not longer than two hours whilst waiting for a constable or designated immigration officer to attend, and’.

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

The amendments to this clause can usefully be divided into those that seek to focus powers so that they are appropriate and those that seek to extend powers, where we think that that is appropriate. This amendment seeks to extend powers so that they are appropriate. The argument for this amendment has been strengthened by the rejection of the previous amendment. What I have said about potential elephant traps still applies, and I hope that those who voted against the previous amendment will not live to regret it if something horrible happens in a few years’ time.

Amendments Nos. 39 and 40 would extend the possibility of immigration officers pursuing individuals. Amendment No. 39 would remove the word “designated”, so that any immigration officer may return an individual who is trying to leave a port, and the Committee will appreciate the evident practical merits of that. It is right and proper that appropriately trained immigration officers are the only ones given the power to detain people, but that situation is very different from one in which someone is trying to leave a port. All that is being asked for is the  power to pursue and return an individual who has already been identified and attempted to be detained. It would clearly be nonsense if somebody were able to slip through the net just because a designated officer is not available, or—I suspect that this is more to the point—if enough designated officers are not available.

That point returns us to the issue of smaller ports and airports, where, I imagine, only one designated official, if any, will be available in many cases. This morning, the Minister told us that roughly 25 per cent. of immigration officers will be designated. It therefore seems highly likely that one designated official at most would be available in many ports and airports at certain times of the day or night, which, if somebody fled, would leave that individual in the invidious position either of leaving their post or of pursuing somebody that they suspected of committing an offence. Amendment No. 39 would make it less likely that that invidious choice would have to be made.

Frankly, I again invite the Minister to consider what would happen in practice. What if he—or a successor, given the rate of change in his job—were forced to answer to the House about a potentially dangerous criminal who was at large because they could not be pursued out of the port or airport from which they had fled, because there was not a designated immigration officer available when perfectly capable immigration officers who did not happen to be designated were available? I suspect that he or his successor would find such an explanation rather uncomfortable and rightly so, because such an event would be nonsense.

Moving on, amendment No. 40 again takes up the practicality argument that we discussed in our last debate. It inserts the capacity to detain an

“individual for not longer than two hours whilst waiting either for a constable or a designated immigration officer to attend,” which clearly gives any immigration officer the power to detain somebody who may have been stopped by a designated immigration officer and who has tried to leave the port. Obviously, amendment No. 40 follows on from amendment No. 39. We are discussing a practical point: if we allow any immigration officer to pursue someone who is trying to flee, they must have a short space of time in which to detain that person after catching and returning them, otherwise there would be a deeply ridiculous situation in which the detainee could walk off again, which would be undesirable.

If we take the Minister’s word, one can get a policeman anywhere in this country at any time of day or night within three hours. That was the proposition he advanced in response to the previous amendment, so, a fortiori, one can find a designated immigration official anywhere within two hours. That is all we seek to achieve with the two amendments. They are practical amendments, which would avoid potential disasters and stop potentially dangerous criminals getting out on to the streets. In that spirit, I commend the amendments to the Committee.

Photo of James Clappison James Clappison Conservative, Hertsmere

I agree with my hon. Friend’s observations, which it is proper to make. We are discussing a permissive power for a designated immigration officer to pursue and return an individual after a different immigration officer has detained or attempted to detain the person concerned. In the light of that, are there any circumstances  in which an undesignated or non-designated immigration officer could pursue or return an individual in the manner contemplated in subsection (5)? If so, will the Minister spell them out to give us an understanding of the legal position?

Photo of Paul Rowen Paul Rowen Shadow Minister, Transport 5:15 pm, 6th March 2007

We are very happy with the amendments. We believe that the powers of the designated officer are the key issue. Clearly, if someone attempts to enter the country unlawfully, no one—not just immigration officers, but citizens—should attempt to assist them. The proposals are sensible and take account of the fact that in many small ports, there might not be many designated officers around. If that were the case, and someone attempted to abscond, anyone at the port should have the authority to stop and detain them.

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

I am, perhaps unwisely, trying to reconcile in my own mind the debates from this afternoon and this morning. I am having one or two difficulties, but perhaps they will become easier towards 7 o’clock. This morning we had an extremely useful, constructive and, I thought, worthy debate about why it is so important to have in place a number of checks and balances for when the Home Secretary seeks to designate immigration officers in respect of the powers set out in the Bill.

In particular, hon. Members from all parties underlined the point that it is extremely important to ensure that individuals have the right level of training. For example, arguments were advanced in favour of codes of practice, subject to affirmative resolution in the House, prior to implementation of any of those powers. Generally, the thrust of the argument was that we need quite a high hurdle for immigration officers to jump before they are allowed to exercise the powers that we are seeking to introduce in clauses 1 to 4. However, where hot pursuit is concerned, the amendments would throw all those protections out of the window.

The clauses set up an operational situation in which only designated officers deemed by the Home Secretary to be “fit and proper” and to have had the right training are allowed to pursue people out of port. The amendments would allow anyone to do that. We must remember that our larger ports, as well as many of our smaller ones, have detention facilities and specially trained detainee custody officers responsible for ensuring that people remain in custody suites. It is probably right to suggest that those seeking to run away from a port are trying to resist an immigration officer’s power of detention. It is therefore important that only officers designated by the Home Secretary, having satisfied him that they are “fit and proper”, can undertake that role.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

The Minister is perhaps losing the practicalities thread. Part of the training involves how to decide whether there should be a power to detain, and here we enter the world of practicalities. When somebody does a runner, it is a question of who can run after them. Let us imagine a situation in an airport or port in which the immigration officer says, “I detain  you”, but that person decides to run. Under the Bill, everyone else must stand there and do nothing. The point of the law is to give people the authority to act. Once the decision has been properly made by a trained person, it is entirely appropriate for any citizen to assist in ensuring that people are operating in accordance with the law on this point. Otherwise, once the decision has been taken, everyone has to stand away while the designated officer huffs away trying to chase somebody.

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

I am following the hon. Gentleman’s argument with some interest, but I am finding it difficult to reconcile it with the argument advanced this morning by the hon. Member for Rochdale, who made great play of the fact that only designated officers—those who have satisfied that Home Secretary that they are fit and proper people—should be blessed with this power of detention in the first place.

Two arguments have been advanced. The first was well expressed by Opposition Members. Unless proper training is in place for officers with regard to executing these powers, they could be placing themselves in considerable danger. That is an unreasonable thing to ask of immigration officers. Secondly, some training is needed. In answer to the hon. Member for Hertsmere, I point out that immigration officers who are arrest-trained may pursue and arrest foreign nationals under the Immigration Act 1971. Under schedule 2, detainee custody officers can also act on those who are seeking to escape from lawful custody—a custody suite in a court.

That underlines the point that those who can undertake hot pursuit, as it were, are those who have arrest training. That is precisely the kind of training that we would see as part and parcel of the designation process, leading to a designation of an officer under these powers. It would be a mistake that cut against all the arguments that Opposition Members advanced this morning to say that only designated officers can detain an individual at a port, but that anyone at all can undertake a hot pursuit. Those who are fleeing from a port are much more likely to be difficult customers to stop.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

Let us imagine a port where someone is coming through and the designated officer tells him to stop. If I stop the person doing a runner, I will be guilty of assault because I will have stopped him unlawfully. That is essentially what the law implies as it is drafted at the moment.

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

The hon. Gentleman is not helping me to reconcile his arguments with those of his hon. Friend this morning. The argument advanced this morning, with which the Government agree, is that if we are asking for additional powers to detain, in this case British nationals, only those who have satisfied the Home Secretary as fit and proper and so have undertaken certain types of training provided by Centrex should be put in that position. To put others in that position would not only incur risks to the immigration officers themselves, but could involve harm to those around them.

Photo of James Clappison James Clappison Conservative, Hertsmere

For those of us who do not have the relevant section of the immigration rules or the 1971 Act at our fingertips, will the Minister explain the powers of a restraint officer? Will he compare the restraint officer’s powers with those that are outlined here?

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

The nub of schedule 2 of the 1971 Act—the hon. Gentleman will forgive me for not having memorised the details of the Act, as it was passed not long after I was born—is that those who are arrest-trained are able to pursue and arrest foreign nationals. The point that I want to underline is that there is an inconsistency between the Committee’s argument that only those who have satisfied the Home Secretary as fit and proper people are able to detain people at a port, but that anybody can then undertake hot pursuit. Those who are fleeing from a port are more rather than less likely to be individuals who will create difficulties. Therefore, if anything, we should argue that there is an even stronger case for saying that a designated officer should be the only officer who should be given that task.

The hon. Member for Ashford made an entirely reasonable point in the later stages of his argument. It is essential that the immigration service understands what the right number of designated officers should be at different ports. We heard Tony Smith, the director of border control, say last week that he thought that in the first instance about 25 per cent. of immigration officers should be designated. That is across the entire service, which is not, of course, to say that 25 per cent. at every port should be designated, so I am sure that the hon. Gentleman has a point in suggesting that it might make more sense for 100 per cent. of the immigration officers to be designated at some smaller ports.

Larger ports, such as Heathrow, have quite robust and extensive detention facilities, so being able to ensure that a greater fraction of immigration officers is designated and able to undertake hot pursuit at smaller ports may be a sensible and reasonable operational consideration.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

Given that the Minister has been referring to discrepancies in people’s arguments, I am surprised that he expects the Committee not to see the difference between an immigration officer quite properly seeking to verify the bona fides of someone entering the United Kingdom through a port and using the legal powers contained in this Bill to detain them, which is a proactive act, and a member of the immigration and nationality directorate, an immigration officer, seeking to apprehend someone who has wilfully escaped that port. There is a difference, and I am surprised that the Minister cannot see it. That is reflected in the amendment.

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

I think that that rather misrepresents the argument that I was seeking to make, but perhaps I should apologise to the Committee if I am not making the point clearly enough. This morning, I thought that we established the principle that if somebody was to be designated with the powers that we seek under this Bill, they should be able to jump certain hurdles and satisfy the Home Secretary that they are “fit and proper” people. We also envisage extensive training as part of that process of becoming a fit and proper person. Those conditions must apply for somebody to have the power to detain someone at a port.

I would have thought that the process of pursuing someone seeking to flee from a port was, if anything, not less dangerous, but more so than the situation that an immigration officer might encounter when seeking to detain somebody in the port, so there is a greater premium, not a smaller one, on making sure that officers who are undertaking hot pursuit have the right level of training.

Photo of John Hemming John Hemming Liberal Democrat, Birmingham, Yardley

Where the Minister is perhaps getting a little confused is in the realities of the situation. If somebody was trying to escape from a corner of this room and I, as a citizen acting in good will, shut the door to prevent them from leaving, that would be wrongful imprisonment unless I was empowered by law. The amendment would give people the ability to assist designated immigration officers in such circumstances. Without those powers, they are prevented by law from offering assistance. What we are arguing is not the same as saying that it is their job to chase people; it is saying, “Well, if you happen to be standing there and the circumstances permit you, you can assist in the pursuit.” We are not saying, “Now it’s everybody’s job to do it”, but seeking to give people a power in law to act to assist the designated immigration officer.

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

I regret that the hon. Gentleman was unable to listen to the hon. Member for Rochdale this morning, as that would have helped him in the argument he is seeking to advance this afternoon. He is calling for immigration officers untrained in arrest training to be given the power to place themselves in harm’s way to detain someone who is fleeing a port. That is a completely inappropriate level of protection and could be a recipe quite dangerous circumstances. If we are asking immigration officers to undertake dangerous tasks, as hot pursuit surely must be, it is only appropriate that we seek to ensure a minimum level of safeguards. That minimum level should be the process that we are suggesting an officer goes through in order to become designated as a fit and proper person.

Photo of James Clappison James Clappison Conservative, Hertsmere

I share the Minister’s concern for the safety of immigration officers and the view that, as part of ensuring that safety, they should receive proper training. We are considering a permissive power, however, and I am concerned about putting the officers in a safe position in every conceivable situation. May I invite him to consider a practical situation that may well arise in a small port with only one immigration officer designated? Such an officer may have colleagues who are not designated, and as the Bill stands, if a person whom he wanted to detain sought to leave and he thought as a designated officer that it was his duty to go after that person, his colleagues would not be able to go to his assistance unless they were designated or had this other restraint power that the Minister has mentioned. That is my worry about the individual designated officer, and I would like the Minister to address that particular situation.

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

I am grateful to the hon. Gentleman, who makes an entirely reasonable point. There are two potential responses to the scenario that he poses. The first is to throw all the safeguards out of the window and say that anybody who works for the immigration  service should have the freedom to place themselves in harm’s way and undertake hot pursuit. The second is that it is the responsibility of the immigration service to make sure that smaller ports in particular have the right number of designated officers.

This is why I draw a contrast with regard to the comments made by the director of border control last week. He said that perhaps across the entire service25 per cent. of immigration officers could be so designated, but that is not to say that 100 per cent. of officers might not be designated at smaller ports.

I think the safer solution is for that scenario to unfold and for us to ensure that there is a proper risk assessment at each port and proper scenario planning, and that where we think the shift patterns and traffic we envisage lead to a need for 100 per cent. designated officers, that is the route we take. I think that that is the safer solution not only for the public, but for immigration services officers.

Photo of David Davies David Davies Conservative, Monmouth

Is it not the reality, however, that the smaller ports will end up with fewer designated officers and the larger ones will be where the designated officers are? Those are the officers who have to undergo the most training, and with the way things work, we all know that they will end up in the busiest ports, not the small ones. Surely, at the very least, immigration officers should have the power that police officers have at the moment, whereby if they are with a member of the public, they may ask that person to assist them in making an arrest. It is actually illegal for a member of the public not to assist if a police officer asks them to do so, although I do not think that that law is enforced in practice.

Surely immigration officers are more than capable of making a decision as to whether a person poses a danger. If that person has come through an airport, they almost certainly will not be carrying any knives or bladed instruments. If they have just jumped off the back of a lorry, they might have such dangerous items, and one might have to take a slightly different view as to how to restrain them. These are matters that immigration officers can surely decide for themselves. If the Minister is keen to trust immigration officers and public servants, is not the suggested approach something we could be doing?

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

What we are seeking to do is run through the logical sequence of this morning’s argument, which ran as follows: when we are extending the powers that we are granting to immigration officers, it is important that they have the right level of training and that the right safeguards apply to their conduct. That is why we propose the process of satisfying the Home Secretary that a person is a fit and proper person. We also said that we would discuss the process of designation not only with the police standards unit, but with ACPO, and that we would make the criteria public so that both Parliament and the public were could be satisfied that we were designating only individuals who we thought satisfied the minimum conditions necessary to exercise those powers. There is a greater need, not a lesser one, for training and safeguards when we ask immigration officers to undertake hot pursuit.

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

I will not give way again, because the argument has run its course.

The bottom line is the point made by Opposition Members about whether there would be the right number of designated officers at a port. I do not entirely agree with the hon. Member for Monmouth that there is an inexorable logic that at smaller ports 100 per cent. of officers will not be designated. That is, rightly, a matter of operational policy. However, the hon. Member for Ashford was right to say that ultimately Ministers will have to account for the use of these powers at ports. In unfortunate incidents in which it became apparent that the right number of designated officers were not available, Parliament would rightly ask Ministers to explain why.

The amendments are a step in the wrong direction, because when it comes to hot pursuit there is a greater need for the protections that we envisage in the process of designation. I therefore ask the hon. Gentleman to seek leave to withdraw the amendment.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

To put it bluntly, the Minister has not made the case against the amendment, and I support the comments made earlier by my hon. Friends the Members for Hertsmere and Monmouth.

I congratulate the Minister on being mentally agile in comparing the position taken by the Liberal Democrats this morning with their position this afternoon. We all know that they are capable of holding two different positions at the same time, not just in the morning and the afternoon.

Photo of Paul Rowen Paul Rowen Shadow Minister, Transport

It might be late in the afternoon, but I have to respond to the hon. Gentleman. Given that our two parties take the same position, albeit coming from different routes, if he is saying that we are taking that position, we have to say that he is, too.

The point that needs to be made is that there is a middle way. The Minister said earlier that training for immigration officers would be improved; it would be proper and sensible for all immigration officers, whether or not they are designated, to be given some form of training in stopping and searching individuals. It is the sort of training that has to happen in a variety of professions, and if that were the case, the amendment would be considered proper, which fits in with what the hon. Gentleman and I were saying this morning.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I beg the Committee’s forgiveness for being unable to resist tweaking the nose of the new Labour-friendly Liberal Democrats, as they are according to their leader, albeit that he is their temporary leader.

We can dance round the eye of an intellectual needle about the clauses, but at the end of the day, they should be informed by practical, realistic experience. As the Minister knows, my hon. Friend the Member for Clwyd, West (Mr. Jones) raised the example of Holyhead when we debated the matter on Second Reading. In the absence of any examples to the contrary, the issue is that there are not enough immigration officers and other law enforcement officers such as special branch and others to deal with such matters.

We have heard lots of warm words about training, as if it is a panacea for all the potential problems in the clause. At present, there are no regulations in respect of that training.

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

The hon. Gentleman is being generous in allowing me to intervene. Will he assure me that he will speak to his hon. Friend the Member for Tatton (Mr. Osborne), who has recently imposed on the Conservative party an edict on proposals for the extra use of resources, and make the case that it should bring forward plans for additional resources for the immigration service?

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I commend to the Minister a superb document from November last year, authored by my right hon. Friend the Member for Haltemprice and Howden (David Davis) and my hon. Friend the Member for Ashford, called “Controlling Economic Migration”. It contains all the pearls of wisdom on the subject that he will ever need.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

Ten years ago the bilateral agreement with France ended and there was the issue of Sangatte. The practical point is that we have had serious problems with people who should not be in this country absconding from ports of entry. It is not necessarily right for the Minister to say that everything will be all right and that people will be designated and properly trained. The problem with some of the clauses is feast and famine. Some are overly lax in their wording, but this clause is overly prescriptive in its use of the word “designated.”

I am puzzled about the Minister’s language on the three quarters of immigration staff who are not designated. A rather cursory approach seems to be taken towards them in arguing that because they have not been trained to the same level as the 25 per cent. who are designated, they are not “fit and proper” persons. If three quarters of immigration officers whom we employ are not considered fit and proper to transact their normal duties, I am rather puzzled. I hope that the Minister does not mean that they are not capable of doing the jobs that they are paid for.

The amendment is nothing other than helpful. It is entirely in keeping with the position that we have taken before and would give us flexibility if we wanted to detain a person who had escaped. We have all seen the rather lax situation whereby police community support officers have a certain amount of time to hold people before they can duly be arrested by a constable, and how difficult that is in the real world, where people are violent and abusive and cause problems. The amendment is flexible and I wholly support it.

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

I know that the hon. Gentleman is not deliberately trying to traduce my argument, so perhaps I can give him some reassurance that when we talk about people being “fit and proper”, we mean fit and proper for the purpose. Perhaps I was using the phrase in a careless form of shorthand. They must be

“fit and proper for the purpose” under clause 1(2)(a) for the purpose of clauses 1 to 4.

In summary, my argument is this: if we are asking people to undertake what will often be the dangerous work of hot pursuit, it is more important, not less, that adequate training and protections are in place. The amendment would cast those protections aside and would be a move in the wrong direction. It is in contradistinction to the arguments made this morning, which underlined the need for the right level of training and process to be in place before we seek to designate officers under the terms of the Bill. I therefore hope that the hon. Member for Ashford will seek to withdraw it.

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

This group of amendments has provoked a more wide-ranging and deeper debate than I might have hoped, and it has been interesting. I am grateful for the eloquent support of my hon. Friend the Member for Peterborough, although I should perhaps move away from him slightly on his remarks about the current leader of the Liberal Democrats, whom I profoundly hope will remain leader until at least the day after the next general election. I am grateful to my hon. Friend also for mentioning the pamphlet that I produced with my right hon. Friend the Member for Haltemprice and Howden last year, “Controlling Economic Migration”. I am glad to hear that the Minister has read it, and I will be happy to make copies available to any members of the Committee who have not yet read it. Signed copies will be extra.

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

One or two.

The Minister has spoken about possible inconsistencies between arguments. I would be more convinced by his generous words about the excellent debate that we had this morning, in which some very good points were made, if he had accepted any of the amendments to which those arguments related. As he did not accept a single one, it seems a touch spurious to pray the arguments used for those amendments in aid of his own case.

The Minister’s best point concerned hot pursuit, to which he sensibly returned in his final argument. He said that that is clearly a potentially dangerous situation and the one in which—more than any other—it is desirable to have appropriately trained people. That is a fair point, and it is one of the reasons why we think that the people engaged in hot pursuit and employed at borders should belong to a properly trained police force. I apologise to him for returning to the matter, but this is the second occasion in a couple of hours in which he has essentially made the case for a border police force. When he makes sensible, practical points about what should happen at our borders and what sort of powers immigration officers or those standing at the border should have, he is making the case for a border police force. He is right about hot pursuit. Even if he gets his way and we do not have a border police force for a few years, we have to weigh up the danger that may be caused by the hot pursuit of anybody, whether by a designated immigration official, another immigration officer or a member of the public, such as the willing bystander posited by the hon. Member for Birmingham, Yardley as a potential helper for designated immigration officers at the border.

We have to balance the picture that the Minister has painted against the other picture—the one that I have been trying to paint—which is a counsel of despair. If somebody gets away from the designated official, or even injures that official so that they cannot pursue, that is it—that person will have got away. Purely on the balance of danger to the public, if we send out the signal that if someone who enters illegally can get out of the clutches of the person who tries to detain them they have a fair chance of escaping, then we will increase the chance of a violent struggle and injury, or worse, to immigration officials. If, however, people know that there is a properly trained and equipped force at the border, they are less likely either to try to come in that way or, if apprehended, to make a potentially violent run for it.

Even in his own terms, the Minister’s arguments do not add up. He will face the problem that even if, as he has said, he were to designate every one of the immigration officers at the smaller ports as those who will have specific training, there will be times when those places do not have the necessary cover. Then word will get out that certain ports have a smaller percentage of designated officers, and those ports will be deliberately put under stress by traffickers, people smugglers and individuals—perhaps serious criminals—who will try to come into the country illegally.

Even though the Minister has spoken at length and has been very generous in giving way to my hon. Friends and to Liberal Democrat Members, he has not convinced me that the amendment will not improve the Bill’s contribution to the safety of our borders. I therefore commend the amendment to the Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

Division number 4 Nimrod Review — Statement — Clause 2

Aye: 6 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment No. 27, in clause 2, page 2, line 16, at end add—

‘(6) Detention under this section shall be treated as detention under the Immigration Act 1971 (c. 77) for the purposes ofPart 8 of the Immigration and Asylum Act 1999 (c. 33) (detained persons).’.

I shall not detain the Committee too long on this technical amendment. Its ambition is to ensure absolutely that the powers that we have in place reflect operational reality on the ground at our ports. The other amendments that we have debated have centred on providing immigration officers with new powers of detention in respect of British nationals. In the debate that we have just had on hot pursuit, we talked a little  about the fact that many of our ports have detention facilities that can be and are used to secure individuals for a period of time. The period of time that we have stipulated in the Bill is

“no longer than three hours” in respect of British citizens.

The operational reality at many of our ports is that the facilities are often supervised by detainee custody officers who operate under powers given in part VIIIof the Immigration and Asylum Act 1999. Thatpower relates to detained persons under the terms of section 147 of the 1999 Act, which refers to

“persons detained or required to be detained under the 1971 Act or under section 62 of the Nationality, Immigration and Asylum Act 2002”.

The amendment seeks to extend the definition to individuals who are detained under this Bill. Without the amendment, we would need to provide for separate facilities to be organised under different arrangements. I do not think that the ports would welcome that regulatory burden, which would complicate and confuse detention facilities management at the ports. We have therefore introduced this amendment to ensure that the detainee custody officers who are in place already and who operate under protections that are already in place can supervise those who are detained under the powers in this Bill as well as the powers in earlier legislation.

Amendment agreed to.

Clause 2, as amended, ordered to stand part ofthe Bill.