Clause 24 - Search for nationality documents by detainee custody officers etc.

Immigration Bill – in a Public Bill Committee at 2:45 pm on 3rd November 2015.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:45 pm, 3rd November 2015

I beg to move amendment 197, in clause 24, page 30, leave out lines 13 to 16

To remove the power to conduct a strip search from detainee custody officers.

We now move to an area of considerable concern. The amendment would remove the power to conduct a strip search from detainee custody officers. The context in which the amendment is put forward is one of considerable concern for some time about the exercise of powers over those in immigration detention—a concern that I believe is shared across the House.

Clause 24 (1) provides:

“The Secretary of State may direct a detainee custody officer, prison officer or prisoner custody officer to exercise any of the powers in subsection (6) in relation to—

(a) a detained person who is detained in a removal centre, prison or young offender institution, or

(b) a person who is detained in a short-term holding facility.”

Subsection (5) provides that the relevant officer must then comply with the direction, with subsection (4) providing that the Secretary of State must have reasonable grounds to believe that,

“a relevant nationality document will be found if a power in subsection (6) is exercised in relation to the person.”

If we press on through the clause, we find a point that ties in with amendment 198—that the definition of nationality document is very wide. Under subsection (15) “nationality document” means,

“a document which might—

(a) establish a person’s identity, nationality or citizenship”.

A document that might establish a person’s identify is a very wide class of documents for all of us. Many documents might establish or help to establish our identity. This gives the Secretary of State a wide power to make a direction in relation to a wide class of documents where the relevant officer must then comply, and the power to include strip search in an environment and a context where there has already been heightened concern about the exercise of powers within immigration detention.

Those are the reasons why these amendments will be pursued. They are pursued with real concern about how the powers will be exercised, based on many points that have already been raised and the reports that have been written about this area.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

There is frequent reference to a young offender institute. Does my colleague share my concern that this means that the power to strip search will also be extended to children?

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

Unless the Minister assures me otherwise, that is precisely how far the strip search provisions will go and it heightens the concern about the exercise of these powers. In those circumstances, a powerful case has to be made for the power to exist at all and for it to be as wide as it is, bearing in mind the definition to which I have already referred.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

I want to focus on Clauses 24 and 25, which hand power to detainee custody officers to perform strip searches. Women are in this country because they have experienced horrific sexual abuse in the countries they have come from. Whether or not they can prove it, does not take away from the fact that they have experienced it. All sexual abuse is horrific and we have all heard truly harrowing stories. I would like to share one with Members.

When I was a Member of the Scottish Parliament, I attended an event addressed by an academic from the Democratic Republic of the Congo, who had sought and been given asylum here. She was addressing a group of MSPs and talked about how on the day that she published her academic research into the sexual abuse of women in the DRC, she got a phone call from her family to say that by way of punishment the army had come to her family home, taken her teenage niece, and stood in a circle round her. One by one they raped that child and the rest of the family was forced to watch. It goes without saying that that is incredibly horrific. She hoped to be able to bring her niece over to this country. I do not know whether she ever did, because I never heard from her again, but let us say that she did and her niece ended up here. Her niece, like many women who have experienced such things, will no doubt have a lifelong terror of anyone in uniform—male and female soldiers conducted the abuse—and of people in authority. If it is absolutely necessary for anyone to undergo a strip search, it has to be conducted with professionalism and sensitivity and must meet the highest standards, which means extremely experienced, highly trained officers.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

I will give way, although I have reached the last sentence of my speech.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

Subsection (8) states:

“A strip search may…not be carried out in the presence of…a person of the opposite sex.”

Does the hon. Lady share my concern that the Bill does not detail whether the search itself may be carried out by someone of the opposite sex?

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

I am concerned. I see the Minister nodding, which I hope indicates agreement that we have to be exceptionally careful and carry out strip searches only if they are essential. We must bear in mind that, whether or not the Home Office believes that person, we do not know unless we were there—they may well have experienced such horrific abuses.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

I think we have all been moved by the story that the hon. Lady mentioned, but does she take comfort, as I do, from the fact that in circumstances in which a strip search has to be undertaken, it is just a surface strip search, if that is the correct term, rather than an invasive strip search? I think that will probably go some way towards addressing her earlier point.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

I am not entirely sure that that would be a strip search. For people who have experienced any kind of sexual abuse, or any kind of powerlessness, somebody touching the surface of their clothes can have—

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

I may have been a little more delicate than I needed to be. Clearly, people will be taking off their clothes—gosh, I certainly would not want to be strip searched—but my understanding is that it would not be an internally invasive strip search, as can often happen.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Civil Liberties)

I now understand the hon. Gentleman’s point. I reiterate that sometimes it is not about whether, to be blunt, there is an internal search. Somebody can be a victim of sexual abuse simply by being touched on the surface of their body—they can be fully clothed and be sexually abused—and such searches are extremely distressing for somebody who has experienced abuse. I take his point, but I ask for a great deal of sensitivity. The example I have cited is not a one-off. I have heard many similar stories, and we should always bear in mind that the person who is being strip searched may well have experienced such abuse. There should therefore be the highest levels of professionalism.

Photo of Albert Owen Albert Owen Labour, Ynys Môn

Before calling the Minister, I remind the Committee that we are considering amendment 197. We will consider amendment 198 separately.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am grateful for that exhortation, Mr Owen. I will therefore resist eliding the two issues and specifically address amendment 197, which has prompted an extremely useful debate on strip searches. I am grateful to the hon. Members for Rotherham and for Glasgow North East for speaking clearly and making the right points about the need for the highest possible standards when using such a draconian power.

First, I offer reassurance to the hon. Member for Rotherham, who asked about the meaning of the guidance that a strip search may not be carried out in the presence of a person of the opposite sex. That includes the person conducting the search. That is absolutely essential, because any other scenario would be wholly wrong and insensitive.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office) 3:00 pm, 3rd November 2015

It is incredibly reassuring to hear that, but will the Solicitor General put it in the Bill?

Photo of Robert Buckland Robert Buckland The Solicitor-General

My understanding of what I prefer to call “full searches”—full non-intimate searches is probably the correct term—is that they are never done to a male by a female or to a female by a male. That has been the case for a considerable period, and probably ever since PACE. I might be wrong, but that is certainly my understanding from years of using the code of practice in my work as a criminal practitioner, prior to my entry into the House.

I want to deal with the question of what precisely we mean here. My hon. Friend the Member for North Dorset adumbrated the point that this is not about an intimate search. This is not a search of body orifices—for example, the mouth. It is what we would describe as a non-intimate search. More importantly, it is not the rather horrific image that might be created in our minds of someone completely unclothed being searched. That is not what happens. The individual must not at any stage be completely naked, so searches have to, in effect, take place with regard to each item of clothing in turn. Of course, that involves looking between the clothing and the skin, because experience sadly teaches us that important documents can often be concealed there, but at no time is the individual humiliated to the extent that they are left without any clothes on at all.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I do not question for one moment the Government’s intention or the guidance, but does the Solicitor General accept that the context makes a big  difference? For example, at Yarl’s Wood, which I know the Government have concerns about and are reviewing, allegations were made as recently as January this year by the charity, Women For Refugee Women, about the treatment of women. Until issues with practice on the ground in detention centres are adequately resolved, the best intentions in the world are at risk, are they not?

Photo of Robert Buckland Robert Buckland The Solicitor-General

This is one of the most important functions that we as a Committee can perform: not having artificial debates but putting on the record the concerns, using the evidence we have as Members of Parliament or, indeed, from our observation of important events at places such as Yarl’s Wood, then seeking clarification from Ministers. I hope that my colleague the Minister for Immigration feels exactly the same way I do—that this is an opportunity for the Government to put on the line what we expect the standards to be when it comes to non-intimate full searches.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful for the Solicitor General’s explanation, and I understand exactly the case he puts for the power, but there is sometimes, as he will understand, a gap between the words that go into Hansard as a result of this exchange and what happens on the ground. That is the real cause for concern, particularly in the light of the Yarl’s Wood example. What practical steps can be taken to turn the assurances the Solicitor General is rightly giving into reality on the ground?

Photo of Robert Buckland Robert Buckland The Solicitor-General

We are going to provide additional guidance on the power to search under clause 24. That is for those who are directing the search on behalf of the Secretary of State and those who are conducting the search. Detainee custody officers, prison officers and prisoner custody officers are trained in the use of search powers, which includes strip searches. Detention services order 9/2012 provides instructions to detainee custody officers, and prison service instructions 67/2011 and 16/2014 provide instructions for searching persons in prisons and young offenders institutions respectively. We will build on those and ensure that the new provisions contain clear guidance.

The hon. Member for Rotherham made a point about the wording, “in the presence of”. We would say that the words are clear: it obviously means the person conducting the search as well. I hope that the explanation that I give as the Minister presenting the clause will be sufficient clarification to allay her fears on that point.

Photo of Sarah Champion Sarah Champion Shadow Minister (Home Office)

I thank the Minister for that clarification, and now that he has specifically put that on record, I am comfortable with that. I know that the Minister is always honourable in his intentions. Could I ask him to answer my point about youth offenders? At what age does he think it acceptable for young people and children to go through this search?

Photo of Robert Buckland Robert Buckland The Solicitor-General

I was coming on to that very point. The power to search children in this way will only be used in exceptional circumstances. Let me explain the background. The Government’s policy is not to detain children in immigration and removal centres, so as part of the family removal process where children are held in a short-term holding facility a few days prior to removal, we believe that this search power will not be necessary because we will have the travel documents in place already.

Regarding young offender institutions, children under the age of 18 are exempt from the automatic deportation provisions for foreign national criminals, so one ground is already removed. Let me give me an example of exceptional circumstances. A 17-year-old male might be held in a young offender institution following a conviction of rape. He is facing deportation on conducive grounds because of this sentence and gang affiliations. If the Secretary of State has reasonable grounds to believe that he may have nationality documents in his possession, then it may be necessary for officers to conduct a full search in the way that we have described. I hope that gives the hon. Lady reassurance that we really are talking about exceptional circumstances, such as an older male who has perhaps been convicted of a very serious offence, where there is a clear public interest in making sure that all reasonable steps are taken before removal from the UK.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

The example that the Solicitor General gives is a 17-year-old male. What does he see as the limits on children under the age of 17? At what age does it become inappropriate to ever exercise this power? I know that is a difficult question in general but this is a sensitive area. A 17-year-old male is one thing—he has given a good example, but there are clearly other examples of concern. What are the limits as the age goes down?

Photo of Robert Buckland Robert Buckland The Solicitor-General

The only answer I can give is that it will depend on a thorough case-by-case analysis. For example, it might be somebody younger who is a persistent offender who has committed a very serious offence. It would be wrong to say that there would be a hard and fast threshold, other than one that would be based on a genuine case-by-case analysis. Many people in this room have had experience of the youth offending system. I think that with training and guidance, we can get this right and make sure that the power is not used in a disproportionate way that reasonable people would regard as an infringement and an inappropriate use of the power with regard to young people. [Interruption.] There is Ministry of Justice guidance which says that searches of males in young offender institutions must be risk based or following intelligence on a case-by-case basis. That is the guidance that will be followed. There will be a read-over and therefore the fear of randomness and of arbitrary judgment is removed by the use of that guidance and careful case-by-case analysis.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I appreciate that to some extent we are exploring the limits of this as we go along and I am grateful for the way that the Minister is dealing with that. It may be a simple question of reassurance but are there any circumstances where under this provision, a child under the age of 10 would be subject to a search? I do not think that would be available under any other provision in criminal law because they would be under the age of criminal responsibility. This is a genuine concern. I am not asking for an instant answer if it is impossible. It may be something that is better done in writing. I think for all criminal law provisions, 10 would be the lower trigger for obvious reasons.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I think, in asking the question, the hon. and learned Gentleman is almost answering the point. In that case, a child under 10 would not have  been convicted of any criminal offence. That is an important start. I am happy to give the assurance that the measure would not apply to a child under 10.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

Of course, the question answers itself regarding young offender institutions. I was not exploring that aspect but I am grateful for the Solicitor General’s assistance. My concern relates to those and any other centres. It is an exploring question, rather than one that may be capable of being answered straight off the cuff.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am happy to give a direct answer. In any circumstance, this will not apply to children under 10.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I have said all that I need to say on amendment 197. I wish to press the amendment to a vote.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived.

Photo of Albert Owen Albert Owen Labour, Ynys Môn

We now come to amendment 198 to clause 24. The hon. and learned Member for Holborn and St Pancras has briefly discussed the amendment but he needs to move it.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I beg to move amendment 198, in clause 24, page 30, line 45, leave out from “which” to end of line 2 on page 31 and insert

“establishes a person’s nationality or citizenship.”

To narrow the definition of nationality document to mean a passport or identity card for the purposes of custody officers, prison officers and prison custody officers who are given powers to search for nationality documents.

I think that the Solicitor General avoided eliding amendments 197 and 198, but I am not sure that I did; therefore, I have already made the point about amendment 198. He sought to give some assurances in his answers to my questions on the previous amendment. My question is the same. The category of nationality documents is potentially very wide. What practical steps can be taken to bring it within reasonable limits and ensure that it is exercised proportionately? It may be that it could go in the envisaged guidance, but it would be useful to have some reassurance about this category of document.

Photo of Robert Buckland Robert Buckland The Solicitor-General

The definition given in clause 24 is frequently used elsewhere in immigration legislation where immigration and police officers have various powers to search for, seize and retain documents that will facilitate a person’s removal from the UK. When it is not possible to obtain passports and identification cards, other documents that contain information such as date of birth, place of birth or right of residence can indeed assist foreign Governments to identify their nationals and provide travel documents for them. Those could include: birth, marriage or civil partnership certificates; divorce documents; adoption papers; maritime or military discharge certificates; tickets for travel in and out of the UK; stubs of boarding passes; resident status documents; and visas and vignettes.

The effect of the amendment would be to hinder the efforts of the Home Office to secure emergency travel documents and to remove people with no leave to enter or remain in the UK. We therefore fear that, despite the understandable intentions of the hon. and learned Gentleman, it does not reflect the reality of what we are trying to achieve, which is to help foreign Governments to facilitate the return of foreign nationals who, after having exhausted due process, are no longer entitled to be here.

The Home Office requests nearly 1,000 emergency travel documents a month where no passport is held or can be used for removal. A proportion of these requests is not agreed because the individual we are seeking to remove provides incomplete or inaccurate information or their claimed nationality is disputed. Even when it is possible to obtain an emergency travel document, it can take several weeks, if not months, to do so. It is essential to retain the wider definition so that the proper policy aim of this clause—an aim that has not been disputed in the past—can be achieved. For those reasons, I would urge the hon. and learned Gentleman to withdraw the amendment.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 3:15 pm, 3rd November 2015

I appreciate that the definition has been used elsewhere. It is the combination of that definition with the strip search that is of such great concern, although in the circumstances, and given the assurances on strip searches, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.