‘(1) Section 26B(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (interpretation of Part 3) is amended as follows.
(2) In the definition of “immigration offence”—
(a) after “means” insert “— (a)”, and
(b) at the end of paragraph (a) insert “, or
(b) (insofar as it is not an offence within paragraph (a)) an offence under the Immigration Acts or in relation to which a power of arrest is conferred on an immigration officer by the Immigration Acts;”.
(3) In the definition of “immigration enforcement offence”, omit paragraph (a).’—(The Solicitor General.)
This amendment ensures that the Scottish powers of detention prior to arrest and of arrest without warrant apply to all immigration offences contained in, or for which an immigration officer has a power of arrest under, the Immigration Acts. It ensures consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom.
I beg to move, That the clause be read a Second time.
The aim of new clause 16 is to ensure that there is consistency in the immigration-related criminal investigation powers of immigration officers across the United Kingdom. As I have mentioned in this Committee, we have been involved in a dialogue with the Scottish Government to ensure that this clause, as with others in the Bill, will enable immigration officers to work effectively within the Scottish criminal justice system.
In England, Wales and Northern Ireland, a person may be arrested and interviewed in accordance with the Police and Criminal Evidence Act 1984 or the Police and Criminal Evidence (Northern Ireland) Order 1989 until a decision is made on whether they should be charged with the offence. In Scotland, that differs to the extent that in most circumstances, a suspect can currently only be questioned if they are detained but not yet arrested. Once the suspect is arrested, the general rule is that they cannot be questioned. That means that immigration officers in Scotland cannot properly investigate immigration-related offences for which they have a power of arrest under the Immigration Acts, but do not have the power to detain pending arrest.
The power of detention under section 24 and the power of arrest that immigration officers have under section 26A of the Criminal Law (Consolidation) (Scotland) Act 1995 are also limited by restrictive definitions of immigration and immigration enforcement offences, further limiting the use that immigration officers can make of their Scottish criminal investigation powers. We therefore believe that immigration officers working in Scotland should be able to rely on their Scottish powers, so that the criminal cases they investigate can be properly progressed towards trial and conviction under the Scottish criminal justice system. Our intention with the new clause is to amend the current power of detention under section 24 of the 1995 Act so that it applies to all immigration enforcement offences contained in, or for which an immigration officer has a power of arrest under, the Immigration Acts.
Although this means amending Scottish legislation, we note that the Scottish Parliament could not be asked to address this issue as varying the powers of immigration officers would not be within their competence. For those reasons, I beg to move that new clause 16 stand part of the Bill.