Committee stage in the Lords
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The Deputy Chairman of Committees (Viscount Allenby of Megiddo)Crossbench- Quote
- If there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
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Baroness Anelay of St JohnsConservative- Quote
- moved Amendment No. 1:
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Lord AveburyLiberal Democrat- Quote
- moved, as an amendment to Amendment No. 1, Amendment No. 2:
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Lord HyltonCrossbench- Quote
- I welcome the concept behind these two amendments, particularly because it would overcome some of the difficulties that the Bill poses of giving powers of arrest and detention to people who are not constables. On the drafting of Amendment No. 1, I question whether in subsection (2)(a), “detecting and removing illegal overstayers”, should be put at the top of the list. I understand that an enforced removal is already estimated to cost £11,000 per person removed. As for the drafting of subsection (3) and the bodies to be consulted in subsection (5) of Amendment No. 1, the British Transport Police, which does the policing of the whole rail system in the country, seems to have been omitted. Finally, among current problems, at some ports of entry there is alleged at the moment to be no one on duty at all.
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Baroness Carnegy of LourConservative- Quote
- I support the amendment of my noble friend Lady Anelay. It seems to me very important that the Government should think hard about this matter, particularly today, when the public may be more aware than they were of the importance of knowing who we have in this country and who we do not—who lives here and who does not. No one is more anxious to ensure that we have properly controlled borders than those who have come here legally as immigrants or those whose forebears came here before them. I live in Scotland and I want to say a word more about this matter in connection with Amendment No. 3. Until Saturday, I think that there was rather less strong feeling on this subject in Scotland than there is today. The explosion in Glasgow struck home very much with the people of Scotland, who may be feeling more a part of the United Kingdom in this respect than previously. My noble friend’s amendment would establish a UK border police force and, in some ways, it would be a simple way of doing what needs to be done. The consultation that she recommends would be very important—particularly consultation with the public, who would come to see the best and most secure way of proceeding. It is a very big subject and I shall be interested to hear what the Minister has to say, but I think that my noble friend has made a good suggestion. Of course, I was interested in what the noble Lord, Lord Avebury, said. He is talking about the same thing, but my noble friend’s amendment is probably the right one.
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The Earl of ListowelCrossbench- Quote
- I have listened to this debate with interest and have been put in mind of a report on Frontex, the European border agency, produced a few years ago by Sub-Committee F of your Lordships’ European Union Committee. The report looked, in particular, at the possibility of a European border guard and rejected that option, but Members of the Committee may find interesting parallels in it. I hope that that is helpful.
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Lord Bassam of BrightonLabour- Quote
- I am extremely grateful to the noble Baroness, Lady Anelay, for putting forward her amendment and to all Members of the Committee who have contributed to the debate thus far. I readily concede that this is an important debate, and certainly the issues raised are of considerable importance, not least since the events that took place towards the end of last week. No doubt, as the noble Baroness, Lady Carnegy of Lour, made clear, those events have focused our minds somewhat. There have been repeated calls for the creation of a unified body such as a UK border police force and, as the noble Baroness, Lady Anelay, said, that was debated extensively in Committee in another place, and rightly so. As my honourable friend the Minister for Immigration, Citizenship and Nationality, Liam Byrne, made clear, the Government certainly retain an open mind regarding the longer term but, at this point, we are not persuaded that the establishment of a UK border police force is necessary. However, I underline that recent ministerial and other changes indicate the Government’s commitment to drawing on a very broad range of talent to ensure that Ministers get the best advice on protecting the public and on other areas of government. We believe that the most effective means of strengthening our borders is to continue to have three distinct agencies focusing on their respective priorities, while working closely together to maximise the opportunities for protecting the public. My honourable friend the Minister in another place drew a comparison with the way in which the Armed Forces are organised. We would not consider merging these three distinct services with their specialisms, histories and cultures into one, but we insist that they co-ordinate their intelligence and tactical deployment. That is what we need to do here and that is the model that we have adopted for the border agencies. We already have in place a successful joint working structure in the Border Management Programme, to which the noble Lord, Lord Avebury, referred. That has already delivered models for improved intelligence, joint risk assessment and more effective border controls, where each agency can act on behalf of the others to increase drug seizures, reduce people smuggling and, importantly, counter the threat from terrorism. There are many practical examples of how the current structure works well. In Gatwick, we have immigration officers using Customs powers to identity people smuggling drugs; at the port of Immingham, Customs officers are using immigration powers to search for people being smuggled in freight; and at Blackpool, police are using Customs powers to search for smuggled tobacco. I argue that those are real, tangible results which reduce harm to the UK and the public. To create a single UK border police force would require significant infrastructure changes. At the moment, I am not sure we could honestly justify that. It would carry additional and significant costs and distract attention from dealing with the real business of protecting our borders. We know that the international experience is very mixed. In the US and Canada the creation of single border entities in 2002 has not delivered the benefits that were expected. Indeed, five years later, despite changing the badges of the staff at the border, different offices continue to specialise in terrorism, drugs and illegal immigration. In Australia, Customs officers operate the primary intervention capability on behalf of the immigration department. That operates well, given the unique geographical circumstances that exist in that part of the world and the fact that everyone who travels to Australia has a visa in advance—virtual or otherwise. Those approaches have in common the fact that they do not include police in a border control capacity. A single border force may be eye-catching, but it ignores the complexity of the challenge.
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Lord DholakiaLiberal Democrat- Quote
- Has the Minister taken into account the views of the Association of Chief Police Officers or has a consultation taken place with the police? From yesterday's announcement, we now know that the Prime Minister has appointed the noble Lord, Lord Stevens, as an adviser on security at the Met. Surely this is the time to take into account one point of view, that of the police, on whether that is a viable alternative and whether it would be more effective than separate agencies, as the Minister has suggested.
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- Lord Bassam of BrightonLabour
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- Yes, we have consulted ACPO in the past. We know that it was uncertain about the benefits of a single agency and we know that it has given the matter further thought. Yes, of course, we continue to listen to our advisers. At the outset, I made the point that we continue to consult with our advisers and experts on this. A short list of the threats that we face includes terrorism, organised illegal immigration and narcotics smugglers. We have highly skilled specialised individuals to match these threats and overarching structures to meet the challenge. Quite simply, a single border force risks being dysfunctional. Immigration checks at the border must be part of an overall system of immigration control, including visas and in-country checks. Police work needs to be linked to national policing and clearly accountable to the communities it serves. Collection of revenue and the prevention of fraud need to come under the control of the Treasury. Previously, we set up the Serious Organised Crime Agency, a point made by the noble Baroness, Lady Anelay, to unify our efforts against class A drugs and organised immigration crime. That recognised the overlap in this area and demonstrated our commitment to joining up agency resources where there was a clear need to do so. The border management programme is delivering closer and more effective working between the border agencies. It will bring about a cohesive and integrated border security infrastructure and allow us to maintain the expertise of the individual agencies. I argue that people on the front line need legal powers to face up to the challenges now facing the United Kingdom. That is why we have legislated to improve our ability to share information, for example, and why we will press forward to get new powers that address the capability gaps, not the presentation of our border service. We need to move beyond the idea of concentrating solely on geographically fixed borders. Increasingly, we will need to export our border. We want to prevent problems before they arrive in the UK, not just patch them up afterwards. We have already introduced juxtaposed controls and airline liaison officers who will roll out biometric visas, for example. We are committed to strengthening our borders. We are delivering this by allowing each agency to focus on its respective priorities while unblocking the barriers to deeper inter-agency co-operation. A single border police force is not, at present, what the UK needs. I think that I have responded to most of the points. Perhaps I missed one raised by the noble Lord, Lord Avebury, about technology. The Government’s e-borders system is of course a multi-agency platform. It will support increased intelligence sharing and joint risk assessment as well as providing for more effective border processing. That can be done, and it works well with the current border management programme. Immigration and customs officers are also already cross-posted at front-line level under that border management programme. Our staff are working well together. There is much sharing of information, particularly hard data. The arrangements are well understood and in place. The international experience is mixed on whether having a single border force works well. We need to concentrate on raising levels of vigilance and ensuring that the agencies work together much better in the future. That is probably a shared commitment from all sides of the Committee.
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- Baroness Anelay of St JohnsConservative
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- I am grateful to all noble Lords who took part in this short debate. It looks as though the noble Lord, Lord Avebury, might wish to get to his feet first.
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- Lord AveburyLiberal Democrat
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- I do not know whether it is the right protocol for me to withdraw my amendment before the noble Baroness comes to decide what she does with hers. I was quite encouraged by what the Minister had to say, particularly his opening remark when he said that the Government retain an open mind for the longer term although they were not convinced that it was necessary to do as we suggest for the time being. I also liked what he said about unblocking the barriers to inter-agency co-operation, the cross-posting of staff between agencies and the sharing of intelligence under the e-borders programme. I ask the Minister not to think that there is too close an analogy between these agencies and the Armed Forces. As he rightly said, there is a special feature in the Armed Forces, not only in their specialisation but in their history and culture, which I respectfully suggest does not apply to the same extent. You do not have regiments, insignia and so on in the agencies that we are talking about. People owe deep loyalties to those things, as we have always seen when proposals are made to abolish a regiment. I am sure that the noble Baroness, Lady Carnegy of Lour, will confirm what I say about the particular case of the Scottish regiments. We would not have that kind of uproar if there was a proposal to integrate the three agencies we are principally talking about into one unified management. With all the measures the Minister described, you still would not have the same economies of management, transferability and inter-operability if all of them were operating as separate entities as you would if they were operating under a single unified management. However, I am not going to pursue that this afternoon, because we will leave the Minister to reflect on the whole concept of a unified border agency. I particularly hope that, following my noble friend’s intervention, the Minister will take advice not only from ACPO but also from all the other stakeholders on whether we can proceed further down this road. This is an ongoing process in which the debate that we had this afternoon is one stage. We have not reached the end of the integration of the various agencies operating at the moment. I beg leave to withdraw—
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- Baroness Anelay of St JohnsConservative
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- The noble Lord, Lord Avebury, was perfectly in order to speak at that point, but he cannot withdraw his amendment until after I have dealt with my Amendment No. 1.
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- The Earl of ListowelCrossbench
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- I was very pleased to hear this debate about secondment and cross-transfer of staff. The special adviser of Sub-Committee F of the European Union Select Committee, which deals with Home Affairs, when we have considered these areas of concern about security across Europe, has emphasised the importance of secondment of staff. Will the Minister provide us with a little more information on the extent of this cross-transfer and any plans for future development in this area? It is the sort of thing that I worry may get overlooked. Particularly with the current concerns about terrorist activity, one may decide to invest heavily in interesting and large initiatives, whereas in the longer term one may need to concentrate on building capacity, including the workforce, with sensible measures such as this secondment between different agencies.
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- Lord Bassam of BrightonLabour
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- I shall try to be as helpful as I can on this. No doubt a lot of questions will be asked not only today but on other occasions that would perhaps be best answered at some descriptive length. We usually have the faculty of an all-encompassing correspondence between Committee sittings and between Committee and Report. I am happy to pick that issue up as part of that.
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- Baroness Anelay of St JohnsConservative
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- I repeat my thanks to noble Lords who have taken part in this short debate. The noble Lord, Lord Hylton, took me to task about the drafting of my amendment, and he did so quite rightly. One advantage of Grand Committee—there are few, but this is one—is that one may table probing amendments such as this as part of a consultation process. Unfortunately, one of the great disadvantages is that that also makes one rather sloppy in tabling amendments, because they do not have to be perfect as one knows that one cannot divide upon them. If one tried to do so, the whole of Grand Committee would be suspended and we would have to move into the Chamber to continue. I have never seen anybody brave enough to do that yet, and I am not starting that trend—yet. The noble Lord, Lord Hylton, referred to two points. First, in subsection (2), on the order in which the items fall, I agree with him entirely. If I were to put the items in order of preference, subsection (2)(a), “detecting and removing illegal overstayers”, would not have been at the top of my list. However, as with all lists drafted in this way, this is not put in order of preference. That is my only defence of myself with regard to this. I certainly think that if one presented this as a government policy, one would have to consider very carefully where one’s priorities lay. The noble Lord also referred to the drafting of subsections (3) and (5) and pointed out correctly that the British Transport Police have been omitted. I could do a weasel defence and say that they would be covered in subsection (5)(f), but I take his point exactly. He is right in saying that they are important, and have been so especially, as one has seen, in terrorism attempts in the past few years. If I brought this amendment back, I would ensure that the British Transport Police formed part of that drafting. The noble Lord, Lord Bassam, began as the noble Lord, Lord Avebury, pointed out by saying that the Government had an open mind, but their mind seemed to get more closed as his response progressed. He said that three agencies should remain and gave his reasons for so believing. He said, too, that a single force was not what the United Kingdom needed, which looked as if it closed the door. I hope that consideration will remain as to the best way in which to develop our security. I noted with interest the appointment of Sir Alan West as Home Office Minister to serve in this House. He has a long and distinguished career in security matters. We will wait to see what influence he may have on Home Office policy-making, but we hope that it will be as constructive as his previous career would lead us to believe it should be. But it is, of course, always a case of whether the Home Office will listen—that is the problem. I conclude by reiterating that this was part of our consultation process. We recognise fully that there is a joint determination by all parties and groups, including the Cross-Benchers in this House, to secure our borders. It is a question not only of the right way to do it but of what is the most efficient way to do it. I listened carefully to what the noble Lord, Lord Avebury, said on that, and he is right. It is a case of trying to ensure that one delivers an efficient and co-ordinated response. How one does that, we will continue to consider.
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- Lord AveburyLiberal Democrat
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- I beg leave to withdraw Amendment No. 2. Amendment No. 2, as an amendment to Amendment No. 1, by leave, withdrawn.
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- Baroness Anelay of St JohnsConservative
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- I beg leave to withdraw Amendment No. 1. Amendment No. 1, by leave, withdrawn. Clause 1 [Designated immigration officers]:
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- Baroness Anelay of St JohnsConservative
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- moved Amendment No. 3:
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- Lord DholakiaLiberal Democrat
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- I am delighted to support the noble Baroness’s amendment. I can think of hardly any Bill on which the two of us have worked when the training issue has not been taken very seriously, and this is no exception. I support the amendment because of my serious concern about the often subjective decisions taken by immigration officers, particularly entry clearance officers abroad, which affect the entry of people coming to the United Kingdom. In this instance, we have designated additional powers to some of these officers. Even if you accepted that idea, as the noble Baroness, Lady Anelay, was right to point out, the rules under which police powers are governed according to the Police and Criminal Evidence Act are not clear. Are we certain that these officers will be trained according to their responsibilities under that Act, and where does accountability for the decision-making process ultimately lie so far as concerns these designated officers? I want to mention a very important point, which I raised during debate on the previous legislation. Then, I asked whether immigration officers were receiving training on police powers, the misuse of those powers and the responsibilities of the Independent Police Complaints Commission. I raise this now because, on the previous occasion, it took Ministers no less than six months to write to me about it formally. It became clear that those who were designated with additional powers—not in this country but outside the United Kingdom, particularly on the French border—did not come within the jurisdiction of the IPCC. The IPCC had no powers or resources to deal with complaints against those who had been designated with this sort of responsibility. Therefore, I want to find out whether the Minister has considered not only extended training for these officers but their accountability with regard to these additional powers. If not, what is their status in relation to the complaints machinery? I should be very glad to support the second part of the amendment of the noble Baroness, Lady Anelay, which says that regulations are to be published no less than six months before the commencement of the section. I think that that is right. People and Parliament should know what these regulations are and effectively how they are being implemented. Therefore, from these Benches, I am delighted to support the noble Baroness, Lady Anelay.
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- Lord HyltonCrossbench
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- I support Amendment No. 3 and point out that it concerns one of the many points raised by the Joint Committee on Human Rights. However, I question whether “regulations” is the right word to use. It may over-formalise the situation a little on the off-chance that the Government feel like accepting the amendment or one similar to it. Clearly acceptable publication setting out the necessary training and qualifications will be very important. The amendment also gives me an opportunity to refer to a practice which I understand is currently used by both immigration officers and police—namely, the stopping and questioning of, in particular, Muslim people entering or leaving this country. It can be seen as a form of discrimination and can cause a great deal of resentment and alienation. I recall that this practice was used regularly during the long years of emergency in Northern Ireland on the ferries between Northern Ireland and Scotland and possibly also Liverpool, and it was sometimes applied at airports for travellers from Northern Ireland. I should be very surprised if, in that case, it ever produced any solid evidence that did any real good, and I would question the practice now.
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- The Earl of ListowelCrossbench
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- I strongly support the amendment in that it provides reassurance that these powers will be used with the correct discretion. Can the Minister say whether there will be a lead immigration officer in each smaller area with special expertise in child protection and an understanding of the needs of children so that he can support his fellow colleagues when implementing these sorts of powers? Can he give some information on what sort of training on the needs of children will be available to immigration officers when they use these new stronger powers?
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Lord JuddLabour- Quote
- I hope that my noble friend will be able to take seriously the case put forward in this amendment. In almost any area of law enforcement or penal policy, as the policy and its implementation move forward, it becomes clear that training is crucial, not least in the sphere of human rights. The balance between law enforcement and human rights is very difficult and it needs sensitive and careful preparation. During recent visits to the police, I have been tremendously impressed by how the police here—and now in Northern Ireland—take account of that difficult balance and of how it must be pursued seriously. It cannot be rushed; it has to be carefully prepared. For that reason and a host of other reasons, there is a lot of merit in the amendment, and I hope that my noble friend will be able to take it very seriously.
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- Baroness Carnegy of LourConservative
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- I support the amendment. Clause 1 states that a person may be a designated immigration officer only if he is fit and proper for the purpose and suitably trained. The question is: what does that mean? My noble friend’s amendment is an attempt to help the Government to define it. It is as simple as that. As we are on Clause 1, perhaps I may ask the Minister a general question. The Bill is about the United Kingdom’s borders, and it is strange that Clauses 1 to 4 do not apply to Scotland. I understand that the reason is that, when drafting the Bill, the Government consulted the previous Scottish Executive, which was a Liberal/Labour coalition, about whether they would allow the Bill to apply to the whole of the United Kingdom. They had to ask because policing is a delegated function and the Bill is closely integrated with the police. That Scottish Executive said that they wanted to legislate separately. That was a slightly strange decision because one of the borders is, in any case, a joint border—the one between Scotland and England—and people can come into England and Wales via Scotland, as they have been doing. It was a slightly strange decision, but they said that they did not want that part of the Bill to apply to Scotland. Since then, there has been an election in Scotland and there is a new Scottish Executive—a minority Scottish National Party Administration. Have the Government consulted that Administration since the elections about whether they continue to want to legislate separately? I ask that because it seemed rather a strange decision by the previous Administration. Even if they have, I wonder whether it would be wise to speak to them again. As I said on the previous amendment, opinion in Scotland seems to have been rather shaken on this whole subject, and the wisdom of a common system under Clauses 1 to 4 might appeal to them more now than it did before. It would be interesting if the Minister could tell us where we are on that and, regardless of where we are, the Government might even try again if they need to. This is quite important. I do not think that this part of the Bill will be effective if it does not apply to Scotland. I see the problems because of the interaction with the local police, but I should have thought that they could be overcome. All the Scots Parliament needs to do is to pass a Sewel motion, which would allow the Government to amend the Bill so that the whole of it could apply to Scotland.
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- Lord HyltonCrossbench
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- As a supplementary to the noble Baroness’s question, have the Government of the Republic of Ireland been consulted about anything arising from the Bill? We have a common travel area with Ireland.
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Lord Roberts of LlandudnoLiberal Democrat- Quote
- The first people that many coming to this country meet will be the immigration officers. What sort of training in greeting people will they receive? We are still seen as a hospitable nation in welcoming people, not hostile. How important will that be in ascertaining the necessary qualifications? Many of the people coming here will be totally devoid of knowledge of the English language. Do we expect that some of those trained as immigration officers will be able to carry out interviews in, say, eastern European or Asian languages, or will adequate translators always be available? I was in Spain about a week ago. I do not speak any Spanish and trying to get a cup of tea was a wee bit difficult. Many people coming here are at a total loss. If the amendment is accepted, what does the Minister see as the type of qualification that will be necessary?
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- The Earl of ListowelCrossbench
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- It is widely acknowledged that the best form of training is continual professional development—in particular, opportunities to talk to a supervisor. One can talk to someone experienced in one’s line of work about one’s cases and reflect with them on what were the good things one did and how one might have done the job differently. I should be grateful if the Minister could also provide information on how immigration officers are supervised and whether there might be any special supervision for these designated officers.
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- Lord AveburyLiberal Democrat
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- There is only one thing that I feel I must add to what has already been said. Considering the debate that we had on the previous amendment, where we were talking about the interoperability of services at ports of entry and the exchange of roles between the Immigration Service on one hand and customs and the police on the other, it is even more important than it would previously have been for us to know what kind of training these people are to have. They will be asked to do a wide variety of jobs which are not necessarily within the sphere of the Immigration Service. At times, they may be called upon, as part of the joint teams with customs, to look at freight wagons for illegal entrants. Under the Bill, they will have powers which were formerly exercisable only by the police. Will the training given to those officers include any knowledge of the functions of Customs and Revenue and the police respectively? If the noble Lord cannot answer that this afternoon, perhaps he could write to us so that we can return to the point later, if necessary.
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- Lord Bassam of BrightonLabour
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- This has been a very useful and wide-ranging debate. It has raised some questions that I shall endeavour to answer this afternoon and, if I cannot, of course I shall answer them at a later date. I am very grateful to the noble Baroness, Lady Anelay, for opening up the interesting discussion on training. As the services work ever closer together at border control centres, because of the issue of interoperability referred to by the noble Lord, Lord Avebury, it is extremely important that they work together well and understand each others’ different roles and that there is some common core training at the heart of it all, so that many of the interrelated issues are understood. Before I deal with training, I shall set out the Government’s justification for seeking powers generally in Clauses 1 to 4. As we noted in the debate on the first group of amendments, the key priority for the Government is to develop closer working between the border agencies. Project Semaphore, the test-bed for the full e-borders system, is now receiving data from 56 carriers operating to and from 99 non-UK airports and seaports. To date, over 10,730 multi-agency alerts have been issued with over 950 arrests being made. That part of the exercise is working well. Those figures show that at ports where a police officer is not in attendance, there is a role for designated immigration officers. They can help the police by acting in support of the police until such time as a constable can attend and assume responsibility for an individual. As I said at the outset, it is very important that each understands the distinct roles, that there is training common to all and that a common understanding is developed as part of that. The Government, of course, agree that immigration officers exercising any powers should receive the appropriate training and have the necessary qualifications. I shall explain why the Government consider Amendment No. 3 unnecessary and I hope to provide the noble Baroness and others with assurance on that. The Bill already sets out sufficient safeguards in that officers may be designated only where the Secretary of State is satisfied that they are fit and proper for the purpose and have been suitably trained. The Bill also provides for designation to be revoked at any time. New training will be based around existing good practice and will be likely to mirror closely the existing training for immigration officers who exercise powers of arrest. In collaboration with police colleagues, we are developing specific criteria for the designation of immigration officers. The Border and Immigration Agency already has experience of implementing similar certification arrangements for other groups. For example, procedures are in place for the authorisation of detainee custody officers and for search officers, which require the Secretary of State to be similarly satisfied that a person is fit and proper to carry out his duties. We are using these procedures as a blueprint for this regime. It is vital that we retain the flexibility to amend these policies and guidelines quickly and efficiently as the business demands. If we were to go along the route of regulations, that would require that any amendments to those policies and guidelines would need to come before Parliament on each and every occasion, even when only small changes were to be made. I would argue, not least for some of the reasons given by noble Lords this afternoon, that that would be unwise, inflexible and not fit for the purpose. We are content to make the more detailed designation criteria and the details of the training schedule available as and when they are developed. I do not consider the amendment to be necessary, because it would create a disproportionate regulatory burden where alternative mechanisms can be put in place.
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- Lord Roberts of LlandudnoLiberal Democrat
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- How do the Government plan to deal with the language question?
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- Lord Bassam of BrightonLabour
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- The BIA runs language training for immigration officers. Immigration officers are encouraged to speak other languages, and translation of our literature is a key feature of our customer interaction. Particularly in the larger volume ports and airports, we try to ensure that there is reasonable and easy access to languages where there is a particular problem or difficulty. We are very proud of that service and we seek to continue to develop it. The noble Lord, Lord Hylton, asked a question about the Republic of Ireland. We have a regular dialogue with the Republic about immigration matters and our respective processes and systems. We have spoken in detail about the Bill. We understand that the Republic is in the process of debating immigration legislation, so the importance of the question is plain. We need to continue that dialogue. The Republic will, no doubt, be seeking our advice and we will benefit from its reflection on what we are trying to do.
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- Lord JuddLabour
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- Will my noble friend say a word about how the understanding of the human rights of those involved will be covered?
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- Lord Bassam of BrightonLabour
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- I would be very surprised if staff in the service were not apprised of human rights issues. They are increasingly a feature of their understanding and senior staff will always be trained in that regard.
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- Baroness Carnegy of LourConservative
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- I was very grateful for what the noble Lord said about the position in relation to the Scottish Executive. It was not exactly the same as my information, but doubtless I was informed wrongly that the Executive intended to introduce legislation themselves. From what the Minister said, the Executive think that their existing arrangements are adequate and that they do not require designated immigration officers. That means that, in effect, Clauses 1 to 4 will not always apply to England because people will be able to cross the Border unless it is policed in a way that it could not possibly be: to keep people coming from Scotland into England. Anyone who knows that Border knows that crossing it is easy; the grouse do it. It would be worth the Government keeping in touch with the Scottish Executive now, as the Minister said his department would. They may have changed their minds. This is a UK Borders Bill but whether that is the right name for the Bill, because of Clauses 1 to 4, I am not sure. I have not been into this in great depth, but I talked to one or two people and got slightly different information, so I realise that that was incorrect. I see from those behind the Minister, who are nodding, that I am right in thinking that there is an intention to do nothing.
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- Lord AveburyLiberal Democrat
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- Can the noble Baroness say what is the equivalent power in Scotland to the Police and Criminal Evidence Act 1984, which would not be exercisable by the Scottish police because Clauses 1 to 4 do not apply to them? It would be interesting to know what that power is and whether the police in Scotland think that they can carry out these functions without the benefit of Clauses 1 to 4.
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- Baroness Carnegy of LourConservative
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- I wish that I could fill in the necessary information but I am afraid that I cannot; I am simply not in a position to do so. The Minister might want to go into that himself. That is the nub of the matter. Will the United Kingdom have the benefit of the Bill if Scotland does not play ball?
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- The Earl of ListowelCrossbench
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- I am most grateful to the Minister for his comprehensive response on child protection. I should be grateful if he could write to me about supervision. I should be interested to know whether immigration officers have regular opportunities for a one-to-one discussion with their line manager about their practice or what other mechanisms are in place to encourage reflection on practice by immigration officers. Training is obviously one means of doing that.
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- Lord Bassam of BrightonLabour
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- I will take that point away and will happily write to the noble Earl if he wishes that information to be put in writing. On the point of the noble Baroness, Lady Carnegy of Lour, we will of course keep that issue under review as part of our dialogue with the Scottish Executive. We have police officers in all the ports who believe that they have the necessary powers. The Scottish Executive take the view that they do not need the legislation in the way that the noble Baroness has set out. That is the situation, but it is one of those things that can change, as the noble Baroness well knows.
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- Lord DholakiaLiberal Democrat
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- I am grateful for the Minister’s encouraging news about accountability. However, the point at issue—which, as I said, I raised in the last immigration debate—is the accountability of people designated at British posts abroad, particularly in France, where they exercise powers similar to those of immigration officers. When I last raised this issue, the Minister wrote to me saying that they did not fall under the jurisdiction of the IPCC. I take issue with that. You cannot have two groups of people, one of which in this country is ultimately accountable to the IPCC and the other abroad with similar powers but without that accountability. I am not asking for a reply now, because the Minister has been positive in his response so far, but can he look at that issue again? I obviously intend to discuss this with the IPCC to see how we will take the matter further.
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- Lord Bassam of BrightonLabour
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- I will reflect on the noble Lord’s last point. I do not believe that the IPCC could have jurisdiction abroad in this instance, but we need to look at the designation of those officers operating from abroad. The noble Lord has raised an important point and we will certainly have another look at it.
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- Baroness Anelay of St JohnsConservative
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- I am grateful to the Minister for agreeing to do that. We have had some very helpful responses from him, although he said no to my amendment. However, we have made some progress. I am grateful to my noble friend Lady Carnegy for raising the Scottish questions. It is important to have that on the record. My colleagues in another place will want to look at the Minister's responses before considering whether any relevant amendments might be appropriate at Report. That was a very interesting response. On child protection, the noble Earl, Lord Listowel, asked a question about responsibility which I did not hear the Minister answer. He may wish to do so under my Amendment No. 13. He asked whether there would be a lead immigration officer on child protection. I know that the Minister was thinking in terms of Clauses 1 to 4 only, but the noble Earl's question is relevant to Amendment No. 13, which addresses how an immigration agency operates overall. The noble Earl has made an important point. The noble Lord, Lord Hylton, in supporting my amendment in principle, quite correctly, holed it below the waterline. I entirely agree with him, which means I have to agree with the Minister, which is worse—it is easier to agree with the noble Lord, Lord Hylton. Regulations would be over-prescriptive and would over-fetter. One needs something more flexible—the Government’s word—and the Minister is right to say that to come back to Parliament for a statutory instrument for each and every small regulation change would not be good practice. I was grateful to hear him say that details could be made available as and when guidelines and training are developed. Is he able to say today whether that is likely to be in time for Report, which will not be until October in this House? He might want to reflect on that, but it would mean that we might have an opportunity to consider them when we debate the matter in October. That could be considered in the Summer Recess.
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- Lord Bassam of BrightonLabour
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- I cannot say whether I shall have that information by Report, but I take the point made by the noble Baroness. I shall certainly have further discussions with officials and ask what we can do. It would be desirable to put as much of this material as possible into the public domain.
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- Baroness Anelay of St JohnsConservative
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- That is helpful. It may resolve some of the remaining concerns among Members of the Committee about Clauses 1 to 4—that may be a way round the matter. I listened to all the points made very properly by Members of the Committee. We are talking about immigration officers who have an almost impossible task—not one I would relish. They act as meeters and greeters and as the noble Lord, Lord Roberts of Llandudno, who is no longer in his place, introduced his question, I was thinking that we are trying to put an almost impossible list of responsibilities on our immigration officers. When someone enters the country, immigration officers do not know by looking at them whether they are a likely terrorist or whether they are likely to take violent action against them. Although not a terrorist, someone might have another reason to be violent, and immigration officers do not know whether the distress that person is expressing is genuine. They have to be aware that a person may have experienced torture or oppression overseas and that this is the only country where they may find help. However, they may be what one could call a con artist. We are expecting our immigration officers to perform a hugely difficult task and I put on record my thanks to them for trying to do their very best. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 4:
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- Lord JuddLabour
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- I shall speak to Amendment No. 6 and in doing so should draw the Committee’s attention to the fact that I am a member of the Joint Committee on Human Rights. I do that because that committee gave serious consideration to the Bill and has published its observations in its report of 14 May 2007. Some of my amendments will be very closely related to the recommendations of that report. I therefore hope that my noble friends will agree that I should not go through all the arguments we cover, because they are there to be read, but I may refer to some of them. I say at the outset that much of what I say on this amendment will overlap with what was so well said—characteristically well said—by the noble Lord, Lord Avebury. We noted that the power of a constable to arrest under Section 24 of the Police and Criminal Evidence Act 1984, to which the noble Lord has referred, is closely regulated by Code G of that Act’s codes of practice. This code prescribes a number of important requirements regulating the way in which the power is exercised, concerning, for example, the information to be given to a person on arrest and the making of a record for the reasons of the arrest. Police powers to search and seize are also subjected to rigorous controls contained in the relevant PACE code of practice, Code A. The Joint Committee in its considerations recognised that immigration officers’ existing powers to detain, search and seize for immigration purposes are not subject to PACE codes of practice. The committee noted, however, that, on the Government’s own account, the very purpose of conferring the new powers on immigration officers in the Bill is to provide them with powers which are exercisable in connection with criminal offences rather than immigration offences. Such a role in support of the police appeared to the committee to be in the nature of a general policing function, and it therefore thought it appropriate that the Police and Criminal Evidence Act codes of practices should apply to regulate the use of these powers to detain, search and seize in view of their impact on the European convention rights.
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- Baroness Carnegy of LourConservative
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- When the Human Rights Committee discussed this matter—I have not read the report; I should have it in front of me, but I do not—did it recognise that we are talking about only up to three hours? The officer holds on to the detainee pending the arrival of a police constable. It is not dreadful.
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- I thank the noble Baroness for that important point. I assure her that we gave some time to considering that very matter. We were all too aware from much of our evidence and our previous experience as a committee that an awful lot can happen in three hours. From that standpoint, we felt that it was important to make the recommendation.
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- Lord HyltonCrossbench
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- I agree with the noble Lord, Lord Judd, that, particularly when one is dealing with vulnerable people or children, three hours can make huge difference. However, will the Minister tell us how much difference there is between the two separate codes of practice mentioned in Amendments Nos. 4 and 6? I do not have them before me, so I do not know. It would be helpful to know.
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Viscount BridgemanConservative- Quote
- I am glad that the noble Lords, Lord Judd and Lord Avebury, have tabled the amendments and shall be interested to hear the Minister’s response. As we have heard, the Bill will allow designated immigration officers to detain people for up to three hours and use reasonable force so to do. As the noble Lord, Lord Judd, highlighted, the Joint Committee on Human Rights has expressed concern at the lack of scrutiny and transparency in drawing up the standard operating procedures that will attempt to prevent the powers being abused. I am grateful to the noble Lord, Lord Avebury, for drawing attention to the remarks made by my honourable friend Damian Green in the other place. He asked what Parliament is for if not to approve codes of practice. That was echoed by the noble Lord, Lord Judd. On these Benches, we are not yet convinced that the committee’s recommendation to extend PACE codes to these officials is the best way forward. The amendment tabled by the noble Lord, Lord Judd, would turn immigration officers into even more of a quasi-police force than the Bill already does, but without the training or expertise of police officers. Illegal immigration is a long-running and complex issue, yet this Government’s approach continues to be a series of badly thought-out patch jobs. They tweak the system here, add on a bit there and hope that one day they will be magically close to the last loophole and then everything will run smoothly. That is not the way to do it. If the Government listened to Conservative proposals for a dedicated, trained and targeted border police force, these difficulties could be properly resolved before the legislation is introduced. I look forward to hearing the Minister explain what safeguards there will be to prevent immigration officials acting inappropriately, but I do not believe that he will be able to satisfy the valid concerns of the Joint Committee on Human Rights and of noble Lords who have already spoken while the Government’s approach to immigration continues in this direction.
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- Lord Bassam of BrightonLabour
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- I am, as ever, grateful to Members of the Committee who raised these important issues. I am particularly grateful to the noble Lords, Lord Avebury and Lord Judd, for leading off on their amendments in a spirit of co-operation, giving fair consideration to the points and the issues. There are already some situations where immigration officers are subject to PACE codes of practice, but in other cases they are not. As many noble Lords know, PACE codes are specific to those with a duty to investigate offences and, as the noble Lord, Lord Avebury, noted, that is a key dividing line. In considering whether PACE codes of practice are relevant to the powers in Clauses 1 to 4, we need to look at the functions that a designated immigration officer will exercise. It is also worth considering how those functions relate to existing powers. The power to detain in the Bill is specifically intended to support the police at the border by detaining individuals of interest pending the arrival of a police constable: that is its primary purpose. It will be for the constable to decide whether the person should be arrested. The key point is that designated officers will simply be acting in support of the police, not on behalf of the police. This is an important distinction when comparing these powers to the role of a community support officer who acts on behalf of the police and is consequently subject to PACE codes. That is a clear distinction. Immigration officers exercising the power will not carry out any of the major substantive functions of a police constable, such as questioning, arrest, investigation or specific evidence collection. They may search the individual only for anything that might be used to assist escape or cause physical injury; in other words, it will be a defensive search. They can retain and give to a constable any such item as well as any item they believe to be evidence of the commission of an offence, but the substantive police constable functions will remain fully under the control of the police. The designated immigration officer will be under a duty to arrange for a constable to attend as soon as reasonably practical. We expect that, in practice, the period of detention in most cases will be short. In any event, it is subject to a maximum period of three hours. The detention-related activities carried out by a designated immigration officer do not constitute part of the investigative procedure conducted by a police officer. Detention carried out by immigration officers under immigration powers is not subject to PACE codes of practice. We do not believe that it is necessary or appropriate for detention under these provisions to be subject to those codes. The Bill already contains significant legislative safeguards. Immigration officers may be designated only when the Secretary of State is satisfied that they are fit and proper persons for the purpose and have been suitably trained. The Bill also states that a designation may be revoked at any time. It is intended that, where an officer fails at any time to meet the criteria for designation, then the designation will be revoked. In collaboration with the police, specific criteria for the designation of immigration officers are being developed. The Border and Immigration Agency is also developing, in collaboration with the police, comprehensive standard operating procedures that designated officers will be bound by. We have today placed in the Libraries of both Houses those draft designation principles and the draft standard operating procedures. Members of the Committee will have the benefit of being able to view those and make their views known. They are high level and signal our intentions in this area. We intend to continue our process of consultation with the police—
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- Lord AveburyLiberal Democrat
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- The Minister mentioned the comprehensive standard operating procedures which he said had been published today and are in the Printed Paper Office. In am in the hands of the Committee on this, but should those documents not be present in the Grand Committee so that noble Lords can refer to them here? We cannot leave the Grand Committee to go to the Printed Paper Office and fetch them, and are therefore unable to see whether the procedures which the Minister thinks meet the requirements of the JCHR actually do so. While we are having this discussion, it would be useful if we could at least glance at them, even if we could not study them in detail.
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- Lord Bassam of BrightonLabour
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- As I explained, they have been placed in the Libraries of both Houses. They are drafts and are there for comment. No doubt there will be further comments on them, and we will need to publish revisions and publicly place them in the Library. I am happy to try and furnish the noble Lord, and other noble Lords, with copies if we can do that. I question how helpful they would be to us today, but I am happy to try to make copies as available as possible. I have tried to explain why we consider that statutory application of the PACE codes of practice to the detention-at-port provisions is neither necessary nor appropriate. Noble Lords will know that PACE codes are currently under review. Much of the Government’s ambition in this area is to reduce the administrative burden on police and simplify procedures. Similarly, we do not want to impose any greater burden on immigration officers than necessary—a point which the noble Viscount, Lord Bridgeman, alluded to. None the less, we recognise that certain aspects of those provisions may fall within the spirit of the codes, and accordingly we will seek to reflect certain key safeguards contained within PACE codes A, C and G within the final standard operating procedures. Such safeguards will include requirements to use the power fairly and responsibly, with respect for people being searched and without unlawful discrimination; to provide a clear demonstration of the reason why a designated immigration officer thinks that a person may be liable to arrest; to inform the detainee of the reason for detention and advise that they may be searched to determine whether they are carrying anything that may be used to assist escape or cause injury; to have a designated immigration officer make a record of the detention; to provide detainees with rights such as notification of an interested person of the whereabouts of the detainee, information about how to obtain legal advice and access to telephones; to provide minimum standards of accommodation and hygiene and catering facilities; and to establish a comprehensive system to record all events which may then be open to scrutiny by independent inspectors. We intend that the oversight arrangements to monitor the use of powers in Clause 2 will be similar to those currently in existence for the similar powers of detention for immigration purposes. These arrangements cover processes such as the administrative arrangements for authorisations and review by senior officers. They also cover redress, including transparent and accountable complaints procedures as communicated to passengers at ports, in our formal correspondence and contained on our website. Additionally, they cover conditions of detention, such as oversight by independent monitoring boards, the Prisons and Probation Ombudsman, and Her Majesty’s Chief Inspector of Prisons.
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The Duke of MontroseConservative- Quote
- My great apologies for being very late for the Committee—there is a certain amount of chaos at Glasgow Airport at the moment. I understand that in reply to a previous question, when the Minister talked about the useful powers that will be given to immigration officers, he said that the Scottish Executive were satisfied that they had sufficient powers within their existing legislative framework. Could he offer some explanation of why the Scottish Labour Party had a clause in its manifesto to introduce measures parallel to what we are talking about in a Scottish serious crime Bill?
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- Lord Bassam of BrightonLabour
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- Without having the opportunity of talking to my Scottish colleagues on this, my guess is that they thought it was appropriate. There will be provisions to establish a new chief inspector for the Border and Immigration Agency. The new inspectorate will provide a comprehensive review of immigration activities, which will include thematic reviews. We will consider, at an early stage, whether the chief inspector should be invited to report on the implementation of the new detention powers and the operation of the standing operating procedures within six months. I argue, in concert with my colleague the noble Viscount, Lord Bridgeman, that we do not need recourse to the PACE codes—
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- Baroness Anelay of St JohnsConservative
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- May I clarify matters? My noble friend Lord Bridgeman is very firmly on these Benches. I am glad to hear the Minister refer to him as a colleague, but let us not take this comity too far.
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- Lord Bassam of BrightonLabour
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- I was being collegiate in terms of this debate. I would not seek to embarrass the noble Viscount in any way, nor suggest that he was departing from the Benches opposite. In concert with my friend, the noble Viscount, Lord Bridgeman, we take a common view that the adoption of PACE codes would be unnecessarily bureaucratic, inflexible and perhaps inappropriate. However, we are trying to bring in to our standard operating procedures the spirit of those PACE codes in the way in which these matters will be conducted and the oversight and accountability mechanisms in place. We will have the benefit of PACE, which we all agree has worked very well over the past 23 years, but we will also have some necessary flexibility. There will no doubt be an opportunity between Committee and Report for noble Lords to reflect on the drafts that have been provided.
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- Lord HyltonCrossbench
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- If I understood the Minister correctly, he was arguing that it would be too onerous and there would be too much record-keeping if the codes of practice currently applied to the police were also applied to the designated immigration officers. Can he therefore say whether the same considerations apply to the proposal contained in Amendment No. 6, which has been spoken to by the noble Lord, Lord Judd? If they do not, do other and different considerations apply to it? Could the Minister also tell us how many designated immigration officers there are likely to be for the whole of the United Kingdom?
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- Lord Bassam of BrightonLabour
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- My understanding is that there will be about 1,000 designated officers. On the noble Lord’s point about Amendment No. 6, we think that we have the balance about right in the way in which we have set out our standard operating procedures. Ultimately that is a judgment with which people will agree or disagree. I suggest that the noble Lord take the opportunity of seeing whether he thinks that the procedures fairly reflect what I have said. We do not want to be over-encumbered with bureaucracy, but we recognise and accept that there need to be acceptable levels of recording and lines of accountability.
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- Lord JuddLabour
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- I am very grateful to the Minister for what he said. We must all take seriously the news that the standard operating procedures are now available, and I am glad to hear it. However, I am sure that he will take in the best possible part the observation that it might have been helpful if they had been available before this debate so that we could have considered whether or how far they met our concerns and taken it into account. I understand the argument of the noble Viscount, Lord Bridgeman, about quasi-border police forces. I understand that the Opposition want a proper border police force as they see it. However, that is what we have at the moment. It is happening every day and will go on happening every day while we decide whether we will have future legislation on a border police force. Therefore, we need effective arrangements immediately. I was concerned by what the noble Baroness, Lady Carnegy, said, because it is my impression that many of the serious issues arise in those first three hours when people are detained. For that reason, we have to take the matter seriously. However, I acknowledge what the Minister said. I understood him to say that the procedures have been placed in the Library as a basis for consultation and so are not yet finalised. We must go away and look at this matter. Therefore, I shall not move my amendment.
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- Viscount BridgemanConservative
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- We on these Benches are pleased to be of assistance to the Government and to my friend—in a non-parliamentary context—the noble Lord, Lord Bassam. However, has he addressed the point about the approval of Parliament, which was raised by the noble Lord, Lord Avebury, especially in the light of the Prime Minister’s declared intention to give an increased role to it?
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- Lord Bassam of BrightonLabour
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- The noble Viscount gets me to put on the record the fact that the procedures will not be directly approved by Parliament, but we have had extensive consultation. They are in the Library; I have asked officials to provide copies to Members of the Committee. We will receive with interest comment on both the draft designation principles and the standard operating procedures. If we were to go along the route of parliamentary approval, which I do not think the noble Viscount is suggesting that we do, we would be locked into something that is less manageable as a practical working document. I accept that the PACE codes are revisable, but they take longer to be revised and are, in a sense, less flexible. A balance between the two has to be struck, and we think that we have got it about right. I invite Committee colleagues to look at what we have provided and reflect perhaps, as we have to do, between this stage and Report.
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- Lord AveburyLiberal Democrat
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- I am grateful to all those who have taken part in the debate on this amendment, particularly to the noble Lord, Lord Judd, with his experience on the JCHR, for explaining why the JCHR recommended that the PACE code of conduct should be adopted. I wish that it had been possible for us to scrutinise the comprehensive standard operating procedures which the Minister said have been published today so that we could have seen to what extent they matched up with the PACE code of conduct and whether the exclusions simply catered for the fact that, as Ministers told the JCHR, there was no investigation procedure in this instance. The Minister should recognise that the JCHR considered the point which he again made today—that immigration officers’ existing powers to detain, search and seize for immigration purposes were not subject to the code of practice. The noble Lord, Lord Judd, emphasised that the JCHR stated that the immigration officers who exercised their powers under this Bill would do so in connection with criminal offences and not with immigration offences, and that that role appeared to be in the nature of a general policing function and was therefore appropriate to the PACE code of practice. The Minister did not deal with that point. It is a pity that we did not also have in front of us the Government’s response to the JCHR report, which I take it that the noble Lord, Lord Judd, would have mentioned if it had been available. The amount of time that has elapsed between 14 May and 2 July is not excessive in terms of the time that Governments normally take to respond to JCHR recommendations, although it would have been useful to have their response to the report in time for us to look at it in Grand Committee. I was encouraged by what the Minister said about the transfer of some provisions of the PACE code of conduct into the comprehensive standard operating procedures. He said that immigration officers would have to inform the detainee of the reasons for their detention, that there would have to be a record of the detention and that there would have to be access to a telephone and so on. Since the noble Lord, Lord Judd, the noble Viscount, Lord Bridgeman, and I are at one in suggesting that documents which bear on the proceedings of the Grand Committee should be available in the Room and not at the Printed Paper Office, the Minister should take up the matter through the usual channels, perhaps with the Procedure Committee, to make sure that on future occasions when a Minister refers to a document that is immediately germane to the proceedings under consideration, that document is available on the spot and not just in the Printed Paper Office. I was also encouraged to hear what the Minister said about the chief inspector of the BIA and his role, but he slightly marred the point when he said that a decision had yet to be made on whether the chief inspector would be empowered to report on the detention procedures, which is the whole point. If the chief inspector was excluded from looking at one aspect of the BIA’s functions, that would be an unnecessary limitation on his powers and would mean that he did not have a role that corresponded with that of other chief inspectors such as the Chief Inspector of Prisons, who has no limitations on her role.
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- Lord Bassam of BrightonLabour
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- What I said—to be clear for the record—was that I thought that there would be included some consideration at an early stage whether the chief inspector should be invited to report on the implementation of the new detention powers. So I did not rule it out altogether. If the chief inspector reported on those powers, that might also form part of the thematic review process.
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- Lord AveburyLiberal Democrat
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- Exactly. I would hope that the chief inspector would have that role and that there would be no limitation on his or her power to scrutinise any of the functions whatever that were exercisable by the BIA, by analogy with the powers of the Chief Inspector of Prisons, for example. We will look forward to further news on that. We are reasonably happy with what the Minister has said on this amendment, although it does not go as far as we would have liked. However, we are grateful to him for his attempt to satisfy the Committee. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 1 agreed to.
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 5:
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- Lord Bassam of BrightonLabour
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- First, may I ask a very simple question of the noble Lord? Is it his intention to refer in the amendment to the Police Reform Act 2002, rather than 2000? I think that he may have got the wrong piece of legislation.
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- Lord AveburyLiberal Democrat
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- I was quoting from what the Minister said in another place, but it is quite possible that that was wrong or that I made a slip in transcription. However, if the noble Lord, Lord Bassam, wants the reference, it is at col. 154 of the report of the Standing Committee.
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- Lord Bassam of BrightonLabour
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- That is helpful. It is our view that these amendments are unnecessary. We intend that the oversight arrangements to monitor the use of the powers contained in Clause 2 will be similar to those currently in existence for the similar powers of detention for immigration purposes. These arrangements cover the following: process, such as administrative arrangements for authorisations and review by senior officers; redress, such as transparent and accountable complaints procedures as communicated to passengers at ports, in our formal correspondence and contained on our website; and conditions of detention, such as oversight by an independent monitoring board, the Prisons and Probation Ombudsman and Her Majesty’s Chief Inspector of Prisons. Section 41 of the Police and Justice Act 2006 enables the Secretary of State, by regulation, to extend the remit of the Independent Police Complaints Commission in relation to specified immigration enforcement functions, including the exercise of powers relating to detention. The scope of the IPCC’s remit will be put out to consultation and regulations defining specified functions to be covered by the IPCC will be brought forward at the close of that consultation. Regulations under Section 41 can extend only to functions of immigration officers exercised in or in relation to England and Wales. However, separate parallel arrangements are being developed for Scotland and Northern Ireland. I am satisfied that our proposed oversight arrangements in this area are sufficient. I do not think that the proposed amendments are necessary, as they create a disproportionate regulatory burden whereby regulations can be established in other ways or when legislation is already in place. For those reasons, I hope that the noble Lord will be able to withdraw his amendment.
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- Lord AveburyLiberal Democrat
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- When the Minister said that the question of extending the IPCC’s remit would be put out to public consultation, I was not sure whether he was saying that there would be some further process in addition to the one mentioned by the Minister in another place, where it was said exactly which immigration functions would be subject to IPCC scrutiny. The consultation on that question was to be started on 7 May, whereas the noble Lord, Lord Bassam, referred to a public consultation in future, yet to be initiated. I am confused as to whether there are two processes going on regarding the IPCC’s remit or whether the consultation mentioned by the Minister in another place has been postponed from 7 May and is yet to be started. Is it possible for the Minister to clarify whether that process has been started and whether it is a formal consultation in the sense that it would take 16 weeks and be governed by the normal procedures applying to public consultations?
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- Lord Bassam of BrightonLabour
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- I can help the noble Lord here. It was intended that the consultation should start earlier and, when the Minister in another place spoke, he referred to what he expected, quite reasonably, to be undertaken. There were delays to the consultation process. I cannot describe to the noble Lord exactly why they took place but it was probably to ensure that everyone was happy with the process and the content. The IPCC formal consultation will be launched in—I think it is safe to say—a few weeks and it will include oversight of powers of detention in respect of serious complaints. That will be its scope. I hope that that satisfies the noble Lord.
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- Lord AveburyLiberal Democrat
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- I am most grateful to the Minister for that information. I am happy to withdraw the amendment but it was unfortunate that the consultation had to be delayed. If the timetable announced by the Minister in another place had been adhered to, we would have been in a position to comment on the draft proposals while the Bill was going through Grand Committee or, at any rate, by the time it got to Report. In the timetable announced by the noble Lord, Lord Bassam, we shall not even see the draft proposals before the Bill leaves this Chamber, so the parliamentary input to it will be non-existent. I regret that, although there is obviously nothing that we can do about it at this stage. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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The Deputy Chairman of Committees (Lord Tordoff)Liberal Democrat- Quote
- The Statement has begun on the Floor of the House, so I shall adjourn the Committee until it is completed. [The Sitting was suspended for a Statement in the House from 5.40 to 6.22 pm.] Clause 2 [Detention]: [Amendment No. 6 not moved.] Clause 2 agreed to. Clause 3 [Enforcement]:
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- Lord AveburyLiberal Democrat
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- moved Amendment No. 7:
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- Lord HyltonCrossbench
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- It seems to me that this is yet another example of the conscious or unconscious ratcheting up of sentences and penalties. We have already seen the bad effects that that has had and now, because of the overcrowding of prisons, it has caused the Government to release prisoners in advance of the due date. On those grounds, I hope that the Minister will be able to give us a very helpful reply.
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- Lord Bassam of BrightonLabour
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- The noble Lord’s proposal to limit the maximum period of imprisonment for an offence committed under Clause 3(1) to six months may be motivated by a wide range of concerns. We heard that the noble Lord, Lord Hylton, is concerned about prison overcrowding, a subject that has caused considerable concern and debate over the past few weeks. Our decision to increase the term of imprisonment for offences punishable on summary conviction from a maximum of six months to a maximum of 51 weeks is not intended to place a further burden on our prisons as a consequence of any routine lengthening of custodial sentences handed out to those who are convicted of the relevant offences. Rather, our principal intention is to provide greater flexibility in the sentences awarded and to allow greater account to be taken of mitigating and aggravating factors when sentencing. The increase in magistrates’ sentencing powers is also needed to enable magistrates’ courts to give custody-plus sentences, when they are implemented. I heard what the noble Lord, Lord Avebury, said on that. Ultimately, the Government’s intention is to introduce custody plus and to commence Section 281(5) of the Criminal Justice Act 2003 simultaneously at a future date. A consequence of that twinned approach is that, while the increase in sentencing powers may impact on the penalty imposed on an offender, the maximum period that an offender will spend in custody is likely to be 13 weeks, with the remainder of the sentence served on licence. The Government’s decision to defer custody plus reflects the prioritisation of prison and probation resources towards more serious offenders. That was made clear in the criminal justice service review, published last July and, in our view, it is absolutely the right approach. Of course, we shall keep the matter of resources for the custody-plus group of offenders under review and look at what else we might do for that group in the interim. A further reason for our decision is to establish consistency with existing offences against border agency colleagues, to which the noble Lord, Lord Avebury, understandably drew attention and with which he was in agreement. The sanctions in Clauses 3 and 21 are consistent with similar offences and penalties against other law enforcement officers, including officers of Her Majesty’s Revenue and Customs, as the noble Lord noted. A key aim of the border management programme is to enhance joint working between the border agencies to bring about a cohesive and integrated border security infrastructure. Creating a different regime of sanctions and penalties for immigration officers to that in place for officers of Revenue and Customs and police constables would be entirely inconsistent with that approach. Furthermore, under the border management programme, it is envisaged that one agency would provide primary capability on behalf of the other agencies at the front line. Therefore, it is vital that immigration officers are afforded the same levels of protection as officers from other border agencies. That is entirely consistent with the point made by the noble Lord, Lord Avebury, that equal protection should be available to public service workers, a point with which the Government agree and I think is quite right. Immigration officers will be uniformed from the autumn of this year to create a more visible border control presence at UK ports. We want to ensure that we have done everything possible to minimise the risk of uniformed officers being exposed to physical assault and to ensure that immigration officers receive the same level of protection as other uniformed officers of the state. I further underline the point that we need to ensure that we enhance joint working between the various elements of the border agencies. The noble Lord, Lord Avebury, asked for some statistics. I think he wanted to know how many offences of common assault have been prosecuted. I do not have that data with me, but I shall instruct officials to find the answer. It is a reasonable request and it will be interesting to know the size of the problem. I am sure I have covered all the points, but I am happy to provide as much data and information as background to this as I can.
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- Lord AveburyLiberal Democrat
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- Let me see whether I understood the Minister correctly. The provisions regarding the penalties for assaulting an immigration officer were designed with Section 281 in mind. They will come into effect on the same day as Section 281 and the implementation of custody plus. Section 281 is designed to come in to effect when custody plus is implemented. I do not think that he said that the same applies to the provisions in the Bill, but it was implicit in his remarks. I hope I understood him correctly.
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- Lord Bassam of BrightonLabour
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- The noble Lord understood correctly.
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- Lord AveburyLiberal Democrat
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- I am grateful to the Minister. In that case, we face a period in which these penalties will not apply, and that period may be several years because, as the Minister acknowledged, other priorities for the Probation Service—dealing with more serious offences—have led to the indefinite postponement of custody plus so the penalties that are provided in this clause are also postponed indefinitely. How will assaults on immigration officers be treated in the mean time? Will they continue to be treated as common assault? If so, is there any point in having a different penalty when common assault could be assimilated to the provisions of the Criminal Justice Act 2003 by providing that the penalty, which is at present six months, should be replaced in that Act by 51 weeks which, as the Minister explained will be divided up when custody plus is initiated into a short period of custodial imprisonment followed by a longer period of probation. If the intention is to continue using common assault for the next couple of years, it is a pity that is not made plain in the Explanatory Notes. There is nothing to lead one to that conclusion in the notes. One reads the Bill, certainly these clauses, in the expectation that the 51 weeks will be coming into operation in the fairly near future. It is clear from what the Minister said that that is not so, and we have a long hiatus before the provisions in this clause or in Clause 21 are brought into effect. It is generally unsatisfactory to provide in legislation for things that will not happen for some considerable time and that are brought into effect by an order that many never happen. Between now and the date when custody plus is implemented, there may be further thinking on how resources in the Probation Service should best be used. These provisions would never come into existence, and we would be left with the offence of common assault. I also asked the noble Lord why there are specific offences of assaulting a police officer, a customs official or an immigration officer when in all three cases the penalty is the same, and perhaps he will deal with that before we finish with this amendment.
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- Lord Bassam of BrightonLabour
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- It is important that the penalty is the same regardless of whether the description of events varies in some regard. I think the noble Lord now understands where we are, but I shall try to clarify the position. The offence will continue until we introduce custody plus at some point in the future. We are not parking the offence so that no penalties will apply. It will carry on regardless, but at some later point we will introduce custody plus. It is sensible to do so and to ensure that it works well. I hope that clarifies things. If the noble Lord is not satisfied with that, we will come back as part of wrapping up details and with data about the number of assaults, convictions and so on. I shall elucidate further in the correspondence.
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- Lord AveburyLiberal Democrat
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- I do not think that I explained myself fully. In the old days, common assault was punishable by six months’ imprisonment, as was assault of a police officer in the execution of his duty. After the 2003 Act, all summary offences enacted from that point onwards were punishable by a sentence of 51 weeks divided, as the Minister has explained. Why have a separate offence of assaulting a police officer, a Customs officer or an immigration official when the penalty is exactly the same as for common assault? Presumably, common assault could be assimilated into the other offences dealt with under the 2003 Act and the penalty for it could be replaced by the 51 weeks, which is applicable to all summary offences from that point onwards. If the penalty for assaulting whoever, whether it is a member of the public, an immigration official or a customs official, is still going to be 51 weeks, why have a special offence created under this Bill?
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- Lord Bassam of BrightonLabour
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- All three agencies exercise coercive powers. The noble Lord understands that and the rest of the Committee will understand it as well, I am sure. Our view is that they ought to receive protection from a specific offence, which is described as equivalent to common assault. I do not think that there is any distinction there. The noble Lord is asking us to create one offence that is then applicable to all three agencies. That is how the legislation has been layered, in terms of the three services, but the noble Lord is right that in the end all three groups of workers will have the same level of penalty applied for an offence that is equivalent. I do not think that there is much between us here. It is just a matter of how we have got to that point. However, I understand the point that the noble Lord is making.
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- Lord AveburyLiberal Democrat
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- I am not going to prolong this discussion, as I am sure that it could be best dealt with offline. However, I am afraid that the Minister has still not dealt with my point. We are not arguing whether these workers should have adequate protection or about the level of that protection; everybody agrees that the 51 weeks, which is applicable to all summary offences, should be the penalty for assaulting an immigration officer, a Customs official or a police officer. There has not been an occasion as far as I am aware, although I may be wrong, when common assault was subjected to the procedure from the Criminal Justice Act 2003 of raising the level of penalties for all summary offences from six months to 51 weeks and dividing in the manner that has been discussed. If a person commits an assault of any public official he can be charged with common assault and the penalty will be 51 weeks. My question was why we should have a specific offence of assaulting one or other of the three agencies operating at the border when at the end of the day, when someone comes before the magistrate, he gets the same penalty as if he were being charged with common assault. However, I do not wish to waste the Committee’s time in discussing that point. It would be best if we dealt with it offline, and I am happy to leave it to the Minister to drop me a note. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 8 to 12 not moved.] Clause 3 agreed to.
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- Baroness Anelay of St JohnsConservative
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- moved Amendment No. 13:
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- The Earl of ListowelCrossbench
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- I support the amendment. It is important that those children receive the protection that it proposes. I was pleased also to see the Minister’s amendment and look forward to learning more about it. The noble Baroness, Lady Anelay, set out clearly why the Government need not be so concerned about prolonged delays due to recourse to judicial processes. At Second Reading, I pointed out that concerns about application for judicial review are groundless, given that families already have ample and more effective means to do so through the Human Rights Act. I am sure that it is not the Minister’s intention to suggest that the welfare of those children is less important than that of others in this country, but I fear that if they reject the amendment, that mistaken perception may spread. I emphasise the importance of the amendment in encouraging the Government and their agencies more carefully to consider and plan for the vulnerabilities of those children and shall use Yarl’s Wood detention centre as an example. When a group of parliamentarians visited the centre last year, members of staff and the Inspector of Prisons expressed concern at the families’ lack of information on progress of their case. This ignorance greatly increases the distress of the families and seems hard to justify. I should be grateful if the Minister would write to me with details of how families are being informed of the progress of their cases and being given access to legal support. This is administrative detention; they are being held indefinitely without trial; they need information and advocacy for their protection and peace of mind. The Children's Commissioner highlighted that none of the children whom he met on his visit knew why they were detained. He said to the European Union Committee—I quote from column 2 of page 92 of House of Lords Paper 166: “The starkest example I can give you is that on that morning, in the reception area, we found a distraught black child, impeccably dressed in his school uniform. I sat down and asked him why he was there. He said: ‘No one has told me’. I asked him: ‘What is going to happen to you?’ He said: ‘No one has told me’. I said: ‘What has happened through the day?’ He said that that morning he was dressed and ready to go to school. He went to the corner shop to buy a pint of milk and when he came back he saw his house surrounded by policemen and a white van”. With just a little careful thought, much more might have been done to assist children like that boy. Of course, an experience such as that will be traumatic, but the harm could be kept to the minimum. Perhaps I may give another example. Mr Liam Byrne has recognised that it is inappropriate to keep a few families—it is a few—for long periods of time in detention and Jeremy Oppenheim, the children’s champion, also recognises that. Why did the situation of a few families staying so long ever arise? At a visit last year, a random group of families was gathered by the director. Of the small sample that I spoke to, one mother and her two girls aged 15 and eight had completed five months and another mother with two infants had already spent two months there. Those are but a few examples of failing to consider quite simple matters which impinge strongly on safeguarding and promoting the welfare of children. I share another concern about making those children an exception compared with other children in this country and excluding them from the protection of the Children Act 2004. In, I think, 2001, I visited a children's home in north London. The remarkable manager, who had more than 30 years’ experience, expressed her resentment at having to provide beds to a number of Kosovan young men. I was too surprised to challenge her at the time and had no wish to criticise her while she was undertaking such difficult work with the support of staff, some of whom could barely write. Perhaps she felt that, after decades of neglect, social services were just too stretched to take on strangers. There is no doubt that asylum-seeking children can put an additional strain on a system which still, in many places, is grotesquely underdeveloped for a nation as wealthy as ours. Yet we recognise that such children are vulnerable; they may have been trafficked and may have been traumatised by experiences in their home country or on the journey here or by experiences since their arrival. While they are here, they are among our most vulnerable children and require protection accordingly. Our social care system and our immigration system face great challenges. Those people on the front line, the social workers and perhaps the case managers, often feel distressed by the nature of their work and under-supported. They risk burning out and losing the emotional capacity to continue to care about the vulnerable children and adults they deal with daily. In that context, it is unhelpful to draw such a clear distinction between children in the immigration and asylum system and other children. There are bona fide reasons to wish to attempt to manage the flow of people into this country. There is also the innate fear of the stranger and the need to hang societal flaws on others which manifest themselves repeatedly over time, most vividly to us in 1930s Germany. Distinguishing these children, giving the appearance that promoting their welfare is less important to us, may encourage those antagonisms or suggest that they should be given a lower priority. I welcome Her Majesty’s Government’s proposals but as no good reason has been provided to distinguish these children, I hope that they will think again. We should not exclude these children unnecessarily; as far as possible we should make them feel included while they are here and while informing them that they may have to leave. I also take this opportunity to express my disappointment at Her Majesty’s Government’s decision to keep the option of making failed asylum-seeking families destitute. The prospect of that terrible measure makes manifest the necessity to oblige members of the Border and Immigration Agency to give regard to safeguarding and promoting the welfare of children.
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- Lord Bassam of BrightonLabour
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- I was thinking that perhaps it would be better for constructive debate if noble Lords spoke to their amendments first, but I am happy to speak to the government amendment now. I am most grateful to the noble Baroness, Lady Anelay, for the constructive spirit in which she moved her amendment and her general encouragement to the Committee to adopt the Government’s amendment this evening, if only so that it can be further examined and perhaps amended at a later stage in the Bill. That is entirely fair and quite proper. I have recognised for some while that this is an important debate. The Government are committed to doing what we reasonably and practically can to address the issues of concern that have stimulated this series of amendments and debate.
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- Lord AveburyLiberal Democrat
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- This is the second time that we have had reference to a document which has been placed in the Library by a Minister and which is immediately relevant to the subject we are discussing in Grand Committee. I repeat my request to the Minister that when he refers to these documents, he or his department should ensure that copies are available in the Grand Committee, and not in the Library. We cannot leave. We cannot get up from here and wander off into the Library to get copies.
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- Lord Bassam of BrightonLabour
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- I am entirely sympathetic to the noble Lord’s point. I will endeavour to ensure that copies of documents referred to in the way I have done will be circulated to the Committee. I apologise for any unintended slight, and take the noble Lord’s point very seriously. I am advised that the documents are on the Table.
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- Lord JuddLabour
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- I do not want to increase my noble friend’s difficulties in any way. He is expressing genuine concern, and I find his apology convincing. However, I do not quite agree with the noble Lord, Lord Avebury. I do not think that documents should be tabled on the day of the meeting at all. If work is being done in the department, it would be to the assistance of the Committee, and a constructive and helpful contribution, if these documents could be available at the time when amendments were being drafted.
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- Lord Bassam of BrightonLabour
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- Again, in general terms, that is a valid point. I take the admonition. Secondly, in response to its suspicions that a child may be at risk of harm, the agency importantly refers the child to the appropriate agency which has a principal statutory responsibility, usually the local authority or the police in an emergency situation. Thirdly, the code will describe the processes and procedures the agency will have which help identify signs that a child may be at risk from harm, and it will describe how a child’s safety will be taken into account in making immigration decisions. In respect of the second point, I should emphasise that joined-up working with welfare agencies is already an important part of the agency’s practice and underpins these referral arrangements. For example, dedicated teams of social workers have been established at Dover and at the asylum screening units in Croydon and Liverpool. Similar teams are soon to be in operation at Gatwick and Heathrow. Another example is the excellent relationships which have been established with the children’s services authority in Bedfordshire. This has seen the development of a much more robust series of arrangements, including the secondment of social workers to Yarl’s Wood to ensure that the welfare of children detained there is properly assessed. I hope that that addresses concerns which were raised earlier. More widely, the Border and Immigration Agency is strengthening its engagement with local safeguarding children boards. The code will also set out the issues relating to the welfare of a child which must be taken into account. In addition to the specific operational instruction, the code will define how Border and Immigration Agency staff who come into regular contact with children in their work are to be trained, and how such staff are safely recruited with appropriate vetting procedures. As I have said, the code will be a detailed document and, in drafting it, we will consult widely. We will also work with important interest groups such as the Association of Directors of Children’s Services, the new Department for Children, Families and Schools, as well as the Children’s Society and Barnardo’s—which have already expressed their willingness to work with us on the development of the code—the Children’s Commissioner and officials in the devolved Administrations. While I consider the government amendment to present the best approach to keeping children safe from harm, I can understand why, at first glance, a Section 11 duty appears to be an attractive option. I have also noted that the noble Lords, Lord Avebury and Lord Roberts, have sought to amend the Government’s well thought out clause to bring it closer to the duty set out in Section 11. I will spend some time explaining why it is not a duty that would work for the Border and Immigration Agency. First, it is said that not extending the Section 11 duty to immigration functions would mean that children are unprotected. We do not agree with that; it is incorrect. Section 11 makes no distinction as to the immigration status of children, so other authorities that have a Section 11 duty remain under that duty regardless of a child’s immigration status—for example, unaccompanied asylum-seeking children who are looked after by local authorities. Secondly, we do not think it is appropriate for the Border and Immigration Agency to have a duty which requires it to have regard to, “ensuring that children are growing up in circumstances consistent with the provision of safe and effective care and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully”, as the statutory guidance accompanying the duty requires. While the duty is not intended to interfere with the performance of an agency’s primary functions, we are very concerned that the breadth of the duty would beg clarification and invite challenge. The same reasoning applies to the amendments tabled by the noble Lords, Lord Avebury and Lord Roberts. As I indicated, the breadth of the Section 11 duty would invite challenge. Experience shows that many of those challenges would be made simply as a means of frustrating the implementation of legitimate immigration control and without any net benefit to children. We already experience significant problems with judicial review challenges to enforcement action: we receive on average just under 80 each week, and while on average 88 per cent are rejected as having no merit—100 per cent in the cases of the challenges submitted by families in January to April this year—they cause significant delays of several weeks and sometimes of months. This can be extremely upsetting and contrary, perhaps unintentionally, to the welfare of the children involved. Even if the challenges did not prevent the removal of those not entitled to remain in the United Kingdom, they could add to the already frequent attempts to delay removal or affect other aspects of immigration control functions, such the dispersal of asylum seekers. Finally, as I mentioned briefly earlier, there is the added disadvantage that the application of Section 11 extends to England only. We need a provision which we can apply to the whole of the UK. Creating a bespoke duty for the Border and Immigration Agency, tailored to its unique functions, makes better sense. Extending Section 11 to Scotland and Northern Ireland would be complicated, as the provision concerns principally those agencies with responsibilities which are devolved and for which separate safeguarding arrangements are being made. Amendment No. 44, which seeks to impose on the Border and Immigration Agency a duty to ensure that children are, “safe from harm and their welfare is promoted”, effectively seeks to extend Section 11 of the Children Act 2004 to the Border and Immigration Agency by another means, and for the reasons I have already given for rejecting Section 11, I must resist this amendment. However, it is perhaps helpful to explain in more detail why the Border and Immigration Agency cannot take on a wider welfare role. The primary function of the Border and Immigration Agency is to protect the UK border by implementing immigration legislation. Critically, this involves determining whether children have a right to remain here. It is on the basis of that right that durable solutions for a child’s future can be made by the agencies principally charged with those responsibilities. In reaching that determination, the agency must, of course, ensure that it looks after children properly, but it cannot assume responsibility for promoting the welfare of children in the longer term. It is therefore appropriate to define the Agency’s responsibilities towards children in terms of keeping them safe from harm. It is important to be clear what that means, which ultimately the code will make clear in detail. Keeping children safe from harm means keeping them safe from ill-treatment or from the impairment of their health and development. We have chosen this following close consultation with the Department for Education and Science, and it derives from Section 31(9) of the Children Act 1989, in which “development” means physical, intellectual, emotional, social or behavioural development; “health” means physical or mental health; and “ill treatment” includes sexual abuse and forms of ill treatment which are not physical. The Border and Immigration Agency will not be able to identify all cases of harm because of its limited contact with children, but the code will make clear what signs of harm agency staff could reasonably detect and the consideration it would be required to give when a child is identified as being potentially at risk. I appreciate that Amendments Nos. 38 and 40 have not been moved, but I shall deal with them in turn.
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- Lord AveburyLiberal Democrat
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- You cannot do that.
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- Lord Bassam of BrightonLabour
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- I was speaking principally for the convenience of noble Lords because I thought it would help to move the debate on.
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- Lord AveburyLiberal Democrat
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- The Minister has not heard what I am going to say about the amendments, so I cannot very well see how he will reply to them.
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- Lord Bassam of BrightonLabour
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- Well, I was referring to my understanding of the amendments. If the noble Lord wants to speak to those particular amendments, I am happy to give way and allow him to move them.
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- Baroness Anelay of St JohnsConservative
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- Perhaps I can assist. I think that the noble Lord, Lord Avebury, is trying to behave perfectly properly. In seeing how the amendments are listed he naturally thought that the Minister might wish to speak to them first. Because this is a Committee, he can speak to them without moving them. That means that the Minister would still be able to come back and respond to the points made by the noble Lord, Lord Avebury, and the Committee would be able to make its judgment in the light of the contributions from both noble Lords. I think from the comments of the noble Lord, Lord Avebury, that that is what he anticipated.
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- Lord AveburyLiberal Democrat
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- I am in the Committee’s hands in this regard.
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- Lord Bassam of BrightonLabour
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- I tried to enable the noble Lord to move his amendments previously, because I thought that that might be a better way in which to deal with the situation. But we are where we are. I am happy to stop there in my commentary and pick up the points on the amendments to which I was referring after the noble Lord has introduced his amendments.
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- Lord HyltonCrossbench
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- Before we go any further, perhaps I could recall for the Committee’s benefit that these issues were debated in considerable depth on the previous occasion—namely, when we had long discussions on the previous asylum and immigration Bill, now in force. Of course I welcome the Government’s amendment in this group introducing a code of practice. However, as has been said already, it does not go far enough—because having regard is only a halfway step. I welcome also the involvement in these issues of the Children’s Commissioner. But that in itself, though very good, is insufficient. The commissioner can raise issues of policy but, with his limited staff, he cannot possibly be expected to oversee the implementation all around the country by a whole range of government staff of one kind or another. That is why we need a statutory responsibility to safeguard children and we need best practice everywhere. Of course, I draw some encouragement from what the Minister said in reply, and I shall study and look at it carefully and analytically. But I doubt that I shall be fully satisfied. I say that because of the extraordinarily vulnerable nature of some of the children whom we are discussing, such as trafficked children and unaccompanied children, whether or not they are seeking refugee status. ECPAT, the campaign to end prostitution and pornography, is strongly in favour of Amendment No. 13. Parents and adults may commit all kinds of crimes or immigration offences but it is very rare for children to do so, and I believe that they need special consideration.
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- Lord AveburyLiberal Democrat
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- Perhaps I may be permitted to speak to my amendment to the government amendment at this stage. I am not fully conscious of the rules of procedure in Grand Committee and I had thought that the normal way in which to approach this would be for the Minister to move his amendment and for him, at a later stage, to respond to the debate. If I am wrong on that, I gladly defer to the Committee. Whatever way we play this, I am sure that the Minister will have a lot to say at the end of the proceedings on the various speeches made to the amendment moved by the noble Baroness, Lady Anelay, as well as the ones that I am about to speak to. This debate illustrates the fact that it was very wise for the Committee to request the degrouping of Amendment No. 27 from those that we are now considering. Otherwise, there would have been three separate issues for us to consider. There are still two, which makes it more difficult to keep in mind the distinctions between the solutions on offer, as well as tempting noble Lords to make longer speeches than usual. Amendments Nos. 13 and 44 of the noble Baroness, Lady Anelay, place new duties on the BIA through Section 11 and in a stand-alone provision respectively. Government Amendment No. 37 and our Amendments Nos. 38, 39 and 40 deal with the code of practice. I hope that the Committee will agree that it was correct to ask for separate consideration of Amendment No. 27 which, more fundamentally, extinguishes the Government’s reservation to the Convention on the Rights of the Child so that it would apply to the BIA and would inevitably require changes in existing legislation, some of them on the lines of Amendment No. 13. Starting with the Section 11 amendment, we note, with the honourable Member in another place Mr Damian Green, that the duty it places on relevant agencies providing services to children to “have regard” to the need to safeguard and promote the welfare of children in discharging their normal functions is plainly and explicitly not absolute. I am pretty certain that in the extensive list of those to whom the duty is applied by Section 11, there will be agencies which have from time to time rightly placed other priorities higher than the welfare of children. For example, the governor of a youth training centre, a local probation board or a youth offending team might have to put the safety of the public at large in a given situation before the welfare of a particular child. Mr Green went on to say on March 6 that legal advice obtained by the Refugee Children’s Consortium was that Section 11 of the 2004 Act did not give rise to a freestanding duty to safeguard or promote a child’s welfare, but qualified the manner in which existing duties and powers can be exercised. I noted that the Minister, Mr Liam Byrne, in replying to that debate, made no comment on what Mr Green had said. It would be useful to have the Minister’s assent to Mr Green’s proposition of some four months ago. The Government have had plenty of time to think about it since then, and should be able to say whether they would accept it. The question is crucial, because if the RCC’s lawyers are right, it destroys the argument that the BIA would be unable to carry on their statutory duties. What could happen is that, where a child's welfare had been wrongfully disregarded in CRC terms and there was good reason to believe that no regard or manifestly insufficient regard had been paid to safeguarding and promoting the interests of a particular child, a right of action against the BIA or its officials would arise. In my view, that would be a good thing. I invite the Minister to agree that it would arise. The noble Baroness, Lady Anelay, rightly commented that the omission of the Immigration Service from the Section 11 duty is now being brought into sharper focus by the Bill. One hopes that not many children will be affected by these provisions, particularly the detention and search powers in Clause 2. But as, up to the moment when the Bill comes into effect, only the police could do things of that kind and they have been subject to Section 11, it would be a step backwards if the safeguards are removed. I now turn to government Amendment No. 37, which offers a code of practice. I am grateful to the Minister for the explanation that he gave and for the document which has now been circulated, although I must observe that it is only the indicative contents of the code of practice, not the code itself. There are still a lot of blanks to be filled in before we have something that we can get our teeth into. A code of practice provides a lesser protection than Section 11, and is even lower in the scale than the UN Convention on the Rights of the Child. The inaccurate description in the Minister’s letter was repeated this afternoon by the noble Lord, Lord Bassam. He said it is a, “robust strategy to help ensure that children with whom the Agency’s staff come into contact are kept safe”. If it does that, it would do only half of Section 11, which encompasses the welfare of children as well as their safety. I accept that the wording of the guidance on Section 11 needs to be amended to make it clear that in the particular case of the BIA, there is no obligation to ensure, “children are growing up in circumstances consistent with the provision of safe and effective care”, beyond the point of their removal from this country, should that become necessary, nor should there be any requirement on the BIA at the point of removal, “to enable those children to have optimum life chances and to enter adulthood successfully”. I also acknowledge that extending Section 11 as a whole to Scotland and Northern Ireland would be inappropriate, as the Minister said, because it principally concerns those agencies with responsibilities which are devolved and for which separate safeguarding arrangements are being made. If Amendment No. 13 were accepted in principle, there would have to be a further amendment on Report extending the application of paragraphs (n) to (p) to Scotland and Northern Ireland, but I am sure that the parliamentary draftsmen would be able to come up with a suitable form of words for that purpose. With regard to the extra JR challenges to removal that would arise from applying Section 11 to the BIA, to which the noble Lord, Lord Bassam, referred, if there were none, we would indeed be surprised. The figures given were interesting but a little disingenuous. The noble Lord, Lord Bassam, repeated the figures given by the noble Baroness, Lady Scotland. She said that there was an average of 80 JR challenges to enforcement action a week, of which 88 per cent or 70 are rejected as having no merit, including all the challenges by families in the period January to April 2007. Neither the noble Baroness, Lady Scotland, nor the noble Lord, Lord Bassam, gave the number of families or of UASC, and it would be useful to have those figures, if the noble Lord can provide them to the Committee. The Minister and his colleague omitted to say that on 3 March there was a practice direction, under which the court could entertain an application for JR or for an injunction pending JR only if it was accompanied by full grounds or a full explanation of the reasons for the injunction respectively. I would be grateful if the noble Lord would comment on that. Perhaps he will be able to give us some indication of what has happened since 3 March because the figures that he provided the Committee with extended from January to April and we need them to be broken down from the beginning of the year to 3 March and from 3 March to the end of April to see what happened to the JR applications after the practice direction, issued on 3 March. The statistics given by the Minister also omitted, very importantly, the JR applications that do not proceed to a hearing because the Home Office caves in beforehand, not wanting an adverse decision to be recorded. We would like that information, if the Minister will provide it, perhaps over the same period. How many JR applications did not proceed to a hearing in March and April this year because the Home Office withdrew, not wanting an adverse decision to be recorded against it? If 10 JR applications a week are allowed to proceed, that must be because there are reasonable doubts about the decision.
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- Lord JuddLabour
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- When the Joint Committee on Human Rights considered these issues, we heard far too much distressing evidence that asylum-seeking children suffer a lower level of protection in relation to a range of rights compared with other children. In our deliberations, which are there in our report, we consider that one way in which to attempt to address that unequal protection was to extend the duty contained in Section 11 of the Children Act which requires public bodies, as has been argued by noble Lords, to have regard to the need to safeguard and promote the welfare of children when discharging their functions and providing services so that it includes authorities providing support for asylum seekers, the Immigration Service and immigration removal centres. The committee in its recommendation stressed that the Bill should be amended by the addition of a new clause extending the duty in Section 11 of the Children Act to those providing welfare and support services to asylum seekers, including, as I have just said, the National Asylum Support Service, the Immigration Service and the immigration removal centres. I was strongly identified with that work and with the recommendation. Having listened to what my noble friend the Minister said, I believe that it would be churlish not to say that he has endeavoured to move a long way to meet precisely those anxieties. He should be commended for that. I sometimes think that an effective form of pressure, although I may not be very good at it all the time, is to encourage people in the logic of the direction which they have set. Rather than always saying, “Oh, but the bottle’s still half-empty”, it is better to say, “The bottle is half-full; now let’s fill it”. In that spirit, the arguments put forward by the noble Baroness, Lady Anelay, and the noble Lord, Lord Avebury, were very powerful. It would therefore be a pity if, in the spirit of trying to meet anxieties which the Minister has displayed, he were simply to reject the amendments. They genuinely endeavour to strengthen his resolve and to turn what might be seen historically as aspiration into effective action. I share the anxieties of both the noble Baroness and the noble Lord that “have regard to” is not the way in which one makes things effective. It would be quite wrong in Committee deliberations of this kind to become emotional, but I say with all the conviction that I can muster—and here I speak for myself, but know that I speak for other members of the Committee, as well—that we were appalled by how children became casualties of systems. We were appalled at how the identity, personality and individual needs of children, despite the good intentions—and the sadness of it is that very often the good intent is beyond question—of officials and others, were somehow neglected and looked at as only a management problem, to be resolved by finding the right solution at a management level. I began to think in the middle of it all that what really was needed for a child in this situation—let us think how intimidating and formidable it must be for the child concerned—was a champion for them: somebody whose job it was to make absolutely sure that the child’s interests came above everything else. I also became convinced that, in terms of the obligations which we have in good faith given in the UN Convention on the Rights of the Child, we have an absolute duty to keep the overriding interests of the individual child central to the operation. We should ask not just how we find a solution to a problem, but what will really be best for the child. A lot of things need to be done to that end, but the noble Baroness and the noble Lord have taken on board—they might perhaps have been a little more forthcoming and generous in their observations—the momentum which the Minister has established. We should build on that. Their amendments could be extremely helpful in securing effective results rather than expressing administrative aspiration.
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- Lord Roberts of LlandudnoLiberal Democrat
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- I intervene very briefly, as time is not on our side. There is an opportunity here for a reversal of the policy that has been carried on to date. In meeting after meeting, we have discussed the regulations regarding immigration and have contrasted them with the rights of the child in various guises. Although, to some extent, I can understand why, the reply is always, even in relation to the United Nations Convention on the Rights of the Child, that the protocol might interfere with our own immigration regulations. It is always the immigration regulations that win. Many of the amendments have something to do with children. The noble Lord, Lord Judd, who has just spoken, mentioned the paramount need to put children right at the centre of this legislation. This is an opportunity for the Government, who have a new Prime Minister and new Ministers, to take the step and say that the preference must always be for children. We need immigration controls to a certain extent—of course we do—although I am not sure how they would have affected the terrorist efforts of the past two or three days. I do not know how those could have been controlled by any legislation centring on immigration. I have a fair deal to do with the orphans of parents with AIDS in Africa, where thousands of children are born into hopelessness. This is an opportunity for the Government. The noble Earl, Lord Listowel, said earlier that there was a move, with Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, to ameliorate some of the harm that it is admitted has been caused by that Act. I am sure that the subject will arise in this Committee again as we go on to discuss various clauses and amendments. Could we not ask the Government to take a different approach and put the rights of children first? We might need to tweak the immigration controls around them, but let us tell the world that we want to build a world that is fit for children to live in and that this is our contribution. The noble Lord, Lord Judd, referred to a champion for children. There is one, I am told, but we can be the champions for children in legislation. This is a plea to take that into account when considering the amendments that we are discussing now, of which I prefer the Liberal Democrat amendment. Why do I say that?
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- Lord Bassam of BrightonLabour
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- The noble Lord was doing quite well until that point.
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- Lord Roberts of LlandudnoLiberal Democrat
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- The Liberal Democrat amendment is the only one that mentions the United Nations Convention on the Rights of the Child, and I should like to see that embodied in the Bill.
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- The Duke of MontroseConservative
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- I should like to clarify something. The Minister referred to the problem of applying Section 11 to Northern Ireland and Scotland. However, what strikes me is that Amendment No. 13 falls within the part of the Bill—between Clauses 1 to 4—that does not apply to Scotland. The application of Section 11 is certainly a devolved matter. From what the Minister has been saying, it appears that the Government are perfectly happy that, with regard to all the other provisions of Clauses 1 to 4, it should be left to the Scottish Executive to decide what further powers they need. The mood of the Committee seems to be that the Bill needs to include measures that affect Scotland, and one is left to ask whether the Government have approached the Scottish Executive regarding consideration of a Sewell motion and what response they have had.
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- Lord HyltonCrossbench
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- I offer a suggestion on Amendment No. 13 for consideration by the Government. Would the amendment become acceptable if it only referred to England and Wales? Amendments Nos. 38 to 40 reinforce the effect of government Amendment No. 37; what I am going to say is perhaps parallel to them. Will the Government consider appointing legal guardians for those children identified as having been trafficked, and to unaccompanied children arriving in this country generally? I suggest that the appointment of guardians might have a good effect on the most unfortunate phenomenon, which has been going on for a number of years, of children disappearing from care.
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- The Earl of ListowelCrossbench
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- Might the Minister be prepared to meet outside the Committee, before Report, to look at the important and controversial point of what the impact of introducing these children into Section 11 of the Children Act would be? I absolutely sympathise with the Government in wishing to avoid, as far as possible, further judicial delays on a basis which is not well grounded. The Government are absolutely right not to wish children to be further kept in suspense about their future by these sorts of delays. Having thought about this for a long time, my understanding is that the Government’s fears are not well grounded. However, I know that the Government are well advised in this area and have operational experience. If they continue to be concerned, I would want to think again about my position. To give one example, there are serious concerns about the treatment of children in the custodial secure estate; I cite, for instance, the death of a child, Gareth Myatt, at a secure training centre during restraint. But I am not aware of any occasion since the introduction of the Children Act 2004 when the secure estate has been taken to judicial review under Section 11. I do not see that a weak duty such as this is going to provide significant ammunition for further judicial review and delays in the law. It might be helpful to have a careful consideration and discussion of this before Report, to try to thoroughly understand the true position.
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The Deputy Chairman of Committees (Viscount Simon)Labour- Quote
- I am sorry to interrupt the Minister, but I should advise the Committee that Grand Committees can sit for only four and a half hours. We therefore have to finish by 8 pm.
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- Lord Bassam of BrightonLabour
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- I am grateful for that cut-off point. We have been discussing this one for just over an hour, and I had hoped that we could send proceedings merrily on their way not too long in the future. I am grateful for the way in which the Committee has conducted its discussion of these amendments. I was particularly grateful to the noble Baroness, Lady Anelay, for the positive reaction she gave to our amendment. My dear and noble friend Lord Judd was equally generous in his comments. We do not always agree, but we generally come from the same place in terms of the spirit of what we are trying to achieve. By focusing primarily on the welfare of the child, if we all have that at the front of our minds from the outset in this complex debate, we will make some progress. In fairness to the noble Lord, Lord Avebury, I ought to respond to his Amendments Nos. 38 to 40, the point at which I stopped earlier. In essence, those amendments summarise the difference between our positions. If we were to accept those amendments, they would hamstring us in some way. I simply say this about our approach: we are arguing that a code of practice is an acceptable and well established way of setting out how operational services carry out aspects of their functions. Earlier this afternoon we had a debate in which noble Lords opposite were urging the Government to accept a rather more rigorous approach by adopting a code of practice. So I shall borrow the argument that has been made against us in the past and argue that our desire to create a code of practice will achieve a rather more rigorous outcome than some noble Lords would give us credit for. That is why codes of practice exist for PACE and why they have value. I am sure that the Committee understands the import of the PACE codes of practice. I am intrigued by and interested in the proposition of the noble Lord, Lord Hylton, about the value and use of guardians. In essence, that is the result of our relationship, and the arrangements that we strike with, social service departments which have a relationship with a particular port or airport and the staff who work there. They get caught up and receive children as a by-product of the enforcement of immigration legislation. It is hard to define and anticipate every operational eventuality. In our view, regulations that require full compliance would not be appropriate. The code of practice will establish the framework within which Border and Immigration Agency staff take properly into account the need to keep children safe from harm while carrying out their primary function of implementing immigration laws. That is the core of the debate and the essence of what we are all trying to achieve. Seeking to establish this framework as regulations which the agency would be required to observe would undermine the effective performance of its primary functions. There will, of course, be times when immigration decisions will be effected in order to keep children safe from harm; for example, delaying dispersal so as not to interrupt a child’s education. However, a code would not override the Border and Immigration Agency’s abilities to implement immigration laws. It is therefore not appropriate for agency staff to observe the regulations but, rather, to have regard to a duty while exercising functions in the United Kingdom. Those are the main reasons why we prefer our approach and why we think that it is superior and more flexible in dealing with the range of problems that occur in the enforcement of immigration legislation. A number of other points were made by noble Lords, and I shall try to run through them in turn. The noble Baroness, Lady Anelay, made the point that we ought to listen very carefully to the children’s champion. We have been in discussion with the Children’s Commissioner for England, and those discussions continue. The commissioner’s staff will be involved in developing the proposed code of practice. We want to listen to what they have to say because we recognise the value of their advice and that is why they are there. I was invited to agree with Damian Green’s observations, but we do not agree with them. The essential issue between the Government and the legal view referred to from the Refugee Children’s Consortium is whether Section 11 would lead to further legal attempts to frustrate removals. In our view, it would, and it would not necessarily, certainly not in every instance, be in the best interests of the welfare of the child. I made that point earlier because having a swift outcome can sometimes be to a child’s best interests. I was also asked whether we have had discussions with our friends in the Scottish Executive on our amendment. We have, and they are content that we are not legislating in a devolved matter. We have not had discussions with them on the question of a Sewel motion. If we were to amend Section 11 and the 2004 Act, we would need further discussions. The noble Lord, Lord Roberts, in a very impassioned plea—I respect the way in which he made that plea—asked for a reversal of the policy. I would argue that we have made a reversal, certainly of earlier policy. I think that we have moved a long way, as my noble friend Lord Judd was happy to acknowledge. The important issue of trafficked children was raised. We have been commended for signing up to the Council of Europe convention on trafficking. We have embarked on that course to protect children and we need to set out a programme of action on it. We have been consulting and are taking a wide range of views. We have had quite a lot of discussion in your Lordships’ House on the point. The Children’s Commissioner has generally and broadly welcomed our proposals. I argue that we are making progress and think that our code of practice will give full and effective voice to that. We are consulting very carefully on it. I think that one of the most helpful suggestions made in the Committee towards its close was that of the noble Earl, Lord Listowel. Of course we will seek to have further discussion on this issue between now and Report. I want us to do that, not least so that we can understand how we can solve the conundrum that our amendment and the other amendments in this group deal with. We have to do that. We need to ensure that we take the best possible measures to prevent harm to children and to protect their safety. As I said, that is a common aspiration. I am happy to have more cross-party discussion on that and to listen to representations. It would be most helpful. We have had a long debate on this. I hope that the Committee will agree the government amendment in this group, if only so that it can have further debate on Report.
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- Lord AveburyLiberal Democrat
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- The Minister said that he is prepared to engage in further discussions with noble Lords between now and Report on how we can best pursue our common aim of preventing harm and promoting the safety of children, but that begs the point. The essence of what we have been saying is that we want to extend that rubric to the promotion of the welfare of the children. That was why the noble Baroness, Lady Anelay, suggested the formulation in Section 11. The Minister said—
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- Baroness Anelay of St JohnsConservative
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- I am aware of the time: we have two minutes. I wonder whether the noble Lord, Lord Avebury, might be able to pursue this outside the Committee Room if I formally manage to deal with my amendment.
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- Lord AveburyLiberal Democrat
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- It is most unsatisfactory that I should be cut short at this point. There are things that I have to say, which I will attempt to insert at the beginning of the next sitting, and we need the Minister’s reply. It may be highly irregular to do that but for the time being, because of the pressure of time, I am forced to beg leave to withdraw the amendment.
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- Baroness Anelay of St JohnsConservative
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- I understand that the noble Lord has not had an opportunity to move it; he was speaking to it. We all regret that he has found his contribution truncated—
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- Lord AveburyLiberal Democrat
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- I did move it.
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- Baroness Anelay of St JohnsConservative
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- No, the amendment was spoken to. It is moved only if it is in a separate place in the list. The Minister was not able to move his amendment either; he was only speaking to it. We agree on so many things. We agree that child welfare in the immigration system must be at the forefront in all four nations—so my amendment is defective in that respect. We agree that it is important that decisions on children are not delayed. We have to look at the issue of judicial review. We agree that, whatever happens, there has to be a code of practice, and we will need to see whom the Government are consulting on that. We agree that child welfare is vital. What we do not agree on, and what we do have to resolve in our discussions during the summer, is how we arrive at putting children first. I bear in mind precisely what the noble Lord, Lord Judd, said: children are the casualty of systems. We have to stop them being the casualty of systems. They are not the ones at fault. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 4 agreed to.
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- Lord Bassam of BrightonLabour
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- This may be a convenient moment for the Committee to adjourn until Thursday at 2 pm.
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- The Deputy Chairman of CommitteesLabour
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- The Committee stands adjourned until Thursday. The Committee adjourned at 8 pm.
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